of the hour had passed away, there are not, or cannot be, two different opinions in that case."

One of the great principles established at the Congress of Westphalia, of which the admission into the fraternity of nations of the Swiss cantons and the Republic of the Netherlands was an illustration, and the independence of the American colonies, both North and South, a corollary, was that when communities, from whatever source deriving their origin, have attained such a degree of force as to give to them the consistency of states, they are entitled to be regarded as governments de facto, and those who constitute them to be considered citizens, not rebels, and that, for all international purposes, a government de facto is a government de jure. Nor is it necessary, in order to formulate this proposition, to go beyond that text-book, a translation of which, I presume, is to be found in every law library in the country.

"Civil war," says Vattel, "breaks the bonds of society and of the government; it gives rise in a nation to two independent parties, who acknowledge no common judge. They are in the position of two nations who engage in disputes, and, not being able to reconcile them, have recourse to arms. The common laws of war are in civil

wars to be observed on both sides."

Neither the Executive nor Congress, at the commencement of the difficulties with the South, seem to have distinguished between municipal and belligerent rights, nor as to the different jurisdictions by which they were to be enforced. The first act passed by Congress was drawn by the then Secretary of the Treasury, and was entitled "An act to provide for the collection of duties on imports and other purposes." It was intended, Mr. Cushing tells us, to have been substituted for the blockade and other Executive measures that had been adopted during the recess of Congress. This would have been done, had it not been for what he calls

"the unwise and unreasonable intimations from foreign ministers, that, whatever may be the law as to the parties engaged in the hostilities, it can never be considered that, in such a contest, neutrals are to be placed under disabilities and their commerce subjected to restrictions to which they would not be liable in a public war between two foreign powers."

4

According to the eminent lawyer to whom I have more than once referred, and who is understood to have been the confidential adviser of the Government during a great part of the war, President Lincoln contemplated something else than an ordinary blockade, and he admits that it is only in that way that it is possible to reconcile

"the strenuous denial, on our part, of the existence, at the time, of such a state of belligerency between the United States and the insurgents as justified the recognition of them as belligerents by foreign powers, and the numerous acts of Congress asserting and regulating the continued exercise, notwithstanding the current hostilities, of the municipal sovereignty of the Government throughout the United States."

In the War of Secession, the captures of British vessels were usually made under the pretense of a breach of blockade. Vessels sailing with all the regular documents to a neutral port, were captured before their arrival at it, and condemned on the alleged ground that their ultimate destination was a blockaded port, thus pushing to the extreme the doctrine of "continuous voyages," based on the revival, during the wars of the French Revolution, of the rule of 1756. It was against this pretension that Mr. Madison's most elaborate paper, "Examination of the British doctrine, which subjects to capture a neutral trade not open in time of peace," was directed.

The application of the law of blockade to vessels, seized at the moment of their departure from a neutral port bound for another neutral port, however remote it might be from a blockaded port, on the mere suspicion that their cargoes, after having been discharged at a neutral port, might be transhipped for a blockaded port or otherwise placed at the disposition of the enemy, is totally opposed to the Declaration of Paris, which, by requiring a force before the blockaded port sufficient to effectually prevent ingress to it, indicates that it is only in the surrounding waters that the police of the blockade can be exercised. So far as that "declaration" goes, except as regards privateering, it has constantly had the sanction of the American Government. Indeed, President Buchanan insisted, as a condition to our accession to to the "declaration," upon the European powers recognizing still further the rights of neutrals and exempting from blockade all

commercial ports. The rule contended for during the War of Secession could never have existed, if the doctrine had been maintained, which required that a previous notice of the blockade should be given to every vessel-a doctrine sustained by the publicists of the Continent, and to the time of our civil war ever contended for by the United States, who have, moreover, repeatedly given to it the sanction of treaties, including that of 1794 with England. It was our rule during the war with Mexico, and, however it may since have been disregarded by the tribunals, it was likewise declared to be the rule by the proclamations of the President at the beginning of the civil war.

In the case of the Circassian (2 Wallace, p. 135), alluded to by Judge Nelson, in which the decision of the Supreme Court had been overruled by the mixed commission, her immediate destination was Havana, and she was captured on her direct course to that place, it being claimed that her ultimate destination was New Orleans. As the seizure was made hundreds of miles from that port, it is unnecessary to state that there had been no previous warning by the blockading squadron at New Orleans, as Mr. Seward had declared to Lord Lyons was the American rule. Moreover, there was no proof of any formal notification of the blockade to foreign governments which, it has sometimes been contended, rendered unnecessary the indorsement on the register. On the contrary, the fact was fully established in another case, that no such notice had ever at any time been given as to New Orleans (see Judge Nelson's opinion, in the Empress, "Blatchford's Prize Cases," p. 660).

This point, however, it was not necessary for the claimants in the Circassian to establish, inasmuch as the vessel was captured several days after the blockade had ceased to exist, by the occupation of New Orleans by the naval and military forces of the United States, and the restoration of the Federal authority, though even that fact did not avail them in the court of ultimate resort.

The most interesting question affecting the obligations of the parties during the War of Secession grew out of the reclamations of the United States in their character of belligerents against England, who, it was contended, had failed to fulfill her neutral obligations. That they had grounds of complaint would be im

plied from the terms of the article of the Treaty of Washington of 1871, referring what was called the Alabama claims to a tribunal of arbitration.

Distinguished as were the members of the High Commission by whom the treaty was concluded, as well as the commissioners at Geneva, to whom the adjudication of these claims was referred, the value of the whole proceedings, as precedents in the public law of nations, is greatly impaired by the anomalous course prescribed to the arbitrators. They were to be governed by three rules which the parties had agreed upon as rules to be taken as applicable to the case, and by "such principles of international law not inconsistent therewith as the arbitrators shall determine to have been applicable to the case." The rules were:

"A neutral government is bound-1. To use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or carry on war against a power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction to warlike use.

"2. Not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms or the recruitment of men.

"3. To exercise due diligence in its own waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties."

While prescribing these rules, the British members of the High Commission caused a declaration to be inserted in the treaty, that "her Majesty's Government cannot assent to the foregoing rules as a statement of principles of international law, which were in force when the claims arose.”

After the existence of the commission had been jeoparded by the conduct of the United States in presenting reclamations of a national character, and after these had been withdrawn in consequence of a declaration of the tribunal (somewhat out of the usual order of procedure) that these claims which had been termed "indirect claims " could not form the basis of a decree of indem

nity, an award was made for the sum, which was deemed to be the aggregate value of the property destroyed by the Alabama and her consorts. This included the amount paid by the underwriters to the insured to whose rights they were supposed to be substituted.

The treaty, besides providing for the functions of the arbitrators, contained the further stipulation that "the high contracting parties agree to observe these rules as between themselves in future, to bring them to the knowledge of other maritime powers, and to invite them to accede to them." The last reference which we find to this matter, in the correspondence between the British and American Governments, is of the date of February 18, 1874, when

"Earl Granville closed the discussion by informing Sir Edward Thornton that he did not in the present circumstances think it desirable to protract the conversation with General Schenck."

From the papers laid before Parliament subsequently, it would appear that the provision of the treaty which requires the communication of the rules to other powers, asking their adoption of them, had not been carried into effect. This delay, it was alleged, arose from the apprehension that the stipulations of the second rule might be interpreted contrary to the acknowledged practice of the two contracting parties, especially in the Franco-German War, as a general prohibition of the sale of munitions of war by neutrals to belligerents.

The two parties were agreed that the rules should not be presented to foreign powers for their acceptance without an explanation which would prevent such a conclusion, and which would restrain their operation to those acts which are done for the service of a vessel cruising or carrying on war, or intending to cruise or carry on war against another belligerent; and that they should not extend to cases where military supplies or arms are exported for the use of a belligerent power from neutral ports or waters in the ordinary course of commerce. We are not aware of any attempt to renew the discussion since it was closed by Lord Granville in the manner above mentioned, no answer having been given to the resolution of the Senate, passed June 3d of this year, asking the President for the correspondence on the subject. That such has been the fate of these rules we have no reason