Chap. IV. the combatants met at their first encounter in the field. The explanation of these things is easy, and lies upon the surface of this narrative. The eleven States were completely organized as self-governed communities before they attempted to sever their connection with the Union; as a Confederacy, they had only to reproduce and set in motion a machinery with the working of which they were perfectly familiar, and of which both the model and the materials were ready to their hands. Yet, could the Federal Government have marched an army on Charleston as soon as South Carolina issued her Declaration of Independence, the revolt might have been crushed in its infancy, and the Union might have been saved four years of devastation and carnage. But the Federal Government was paralyzed, not only by its own weakness, but by peculiar restraints and extraordinary difficulties. It had at its disposal no regular army. The regular troops of the United States, in April 1861, numbered barely 16,000, not much more than enough to keep in check the roving Indian tribes of the Far West, which is ordinarily their chief employment. Armies had to be raised on both sides, and they could be raised on one side almost as fast as on the other, though they could not be sustained as long. Further, there is no doubt that the Federal Government was really embarrassed, as I have already said, by that peculiar reluctance to resort to force which an American Government might be expected to entertain. This reluctance--the consciousness that it was generally felt around him-the fear lest an attempt to "invade " should drive (as in fact it did) the Border Slave States, in whom the feeling was most keen and irritable, into open revolt-the hope, which many sensible and experienced men were loth to abandon, that attachment to the Union might yet revive, and the Confederacy, if left to itself, crumble away-these influences speak in Mr. Lincoln's inaugural address, though they can hardly be said to supply a reasonable account of his policy. Chap. IV. Americans have been accustomed to think and speak of their Government as resting altogether on the consent of the governed. It is in truth, more than most othersperhaps more than any, though all are so, more or less-supported by an intelligent opinion, pervading the bulk of the community, that it exists for the general good. But, like every other Government without exception, it is supported also by force; it would, indeed, be no Government, and its laws no laws, if it had not power to compel obedience to its authority, or were not ready, in case of necessity, to exert that power. The necessity came, and was accepted; but it came in the form of a revolt of a large part of the whole population of the Union-a revolt which had attained its full proportions before any attempt was made to subdue it. It had then to be attacked, not as sovereigns suppress insurrections, but as nations wage a great war. Government was confronted with Government; armies were arrayed against armies; the seat of rebellion could only be reached by invading, with all the precautions which invaders use, a hostile territory; resistance could only be overcome, after a long and most obstinate struggle, by a re-conquest so stern and thorough that for years after the contest had ceased all the inhabitants of the South had to be kept under military rule, in the prostrate condition of a subject people. 1 Mr. Seward (April 10th), after speaking of the manifest instability of the Confederacy, and the President's hope that the Southern people would be wise enough to see it, wrote: "For these reasons he would not be disposed to reject a cardinal doctrine of theirs, namely, that the Federal Government could not reduce the seceding States to obedience by conquest, even although he were disposed to question that proposition. But, in fact, the President willingly accepts it as true. Only an imperial or despotic Government could subjugate thoroughly disaffected or revolutionary members of the State. This Federal Republican system of ours is of all forms of government the very one which is most unfitted for such a labour."—Mr. Seward to Mr. Adams, 10th April, 1861. Chap. IV Note I. NOTE I. Opinions of American Courts and American Lawyers on the Question at what date the War ought to be deemed to have begun. Ir may be convenient to state here the view taken of the contest by the legal tribunals of the United States. The questions (1), whether it was a war; (2), at what time it become a war; (3), what were its effects (a) under the municipal law of the United States on the status of citizens and inhabitants of the revolted States, and (b) under international law on the rights of foreign Powers and their subjects (questions some of which had previously occupied the District Courts sitting as Courts of Prize), were elaborately discussed and carefully decided by the Supreme Court, in December Term, 1862. This judgment settled the law of the United States on these important questions, and I shall therefore place it under the reader's eye, omitting only such parts of it as dealt with the special circumstances by which the Appellants' Counsel endeavoured to withdraw particular cases from the operation of the general principle. The " Hiawatha," &c., Prize Cases.-The question was, whether certain vessels and cargoes, some the property of persons resident in the Confederate States, others owned by foreigners, were properly captured for breach of the blockade, instituted under the President's Proclamations of April 1861. All the nine Judges were agreed that the validity of the captures turned on the question whether the President had, in April 1861, "power to set on foot a blockade under the Law of Nations." They were all agreed that he had no such power, unless war existed at the time. On this last point they were divided. Four (including Chief Justice Taney) held that the Federal Courts could not recognize the existence of a public or civil war "carrying with it belligerent rights" until it had been recognized by Congress. They held that it was recognized for the first time by the Act of Congress, 18th July, 1861, and that captures, jure belli, made before that Act, must be regarded by the tribunals of the United States as invalid. The propositions contained in the judgment of the majority, which was the judgment of the Court, may be stated as follows: 1. At and before the date of the President's Proclamation of blockade a war was in existence, under which the Government of the United States was entitled to exercise the jus belli, both against its enemy and against neutrals. 2. The "belligerent powers" were the Confederated States on one side, "acting as States" and as a Confederacy, and the United States, claiming sovereignty over the Confederated States, on the other side. 3. The blockade was an act of war instituted jure belli, by virtue of a right which had already accrued and which sprang from the existence of a war. The Proclamations did not originate the war, but recognized it as existing, and must be held "official and conclusive Chap. IV. evidence that it existed. 4. "A civil war"-which this was- -"is never formally declared; it becomes such by its accidents,-the number, power, and organization of the persons who originate and carry it on. 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 Sovereign, the world acknowledges them as belligerents, and the contest as a war." 5. All persons residing in the Confederate States were clothed by the war with the character of public enemies; and their property became liable to capture and confiscation as enemies' property. If actively disloyal to the United States, they were at the same time liable to be punished as traitors. 6. Foreign Powers were clothed by that war with the character of neutrals. British ships and property became neutral ships and property; and the blockade, being instituted jure belli, and not as a municipal regulation or mere exercise of public authority within the limits of the United States, might be enforced by the capture of neutral ships and property on the high seas. I subjoin the judgment itself, extracted from Black's Reports, ii, 665 (Prize Cases). The reasons of the dissentient minority, as stated by Mr. Justice Nelson, will be found at p. 686 of the same volume. MR. JUSTICE GRIER: "There are certain propositions of law which must necessarily affect the ultimate decision of these cases, and many others which it will be proper to discuss and decide before we notice the special facts peculiar to each. They are "1. Had the President a right to institute a blockade of ports in possession of persons in armed rebellion against the Government, on the principles of international law, as known and acknowledged among civilized States? "2. Was the property of persons domiciled or residing within those States a proper subject of capture on the sea as 'enemies' property?' "I. Neutrals have a right to challenge the existence of a blockade de facto, and also the authority of the party exercising the right to institute it. They have a right to enter the ports of a friendly nation for the purposes of trade and commerce, but are bound to recognize the rights of a belligerent engaged in actual war, to use this mode of coercion, for the purpose of subduing the enemy. 66 That a blockade de facto actually existed, and was formally declared and notified by the President on the 27th and 30th of April, 1861, is an admitted fact in these cases. "That the President, as the Executive Chief of the Government and Commander-in-Chief of the Army and Navy, was the proper person to make such notification, has not been, and cannot be, disputed. Note I. Chap. IV. Note I. "The right of prize and capture has its origin in the jus belli, and is governed and adjudged under the law of nations. To legitimate the capture of a neutral vessel or property on the high seas, a war must exist de facto, and the neutral must have a knowledge or notice of the intention of one of the parties belligerent to use this mode of coercion against a port, city, or territory, in possession of the other. "Let us inquire whether, at the time this blockade was instituted, a state of war existed which would justify a resort to these means of subduing the hostile force. "War has been well defined to be, That state in which a nation prosecutes its right by force.' "The parties belligerent in a public war are independent nations. But it is not necessary, to constitute war, that both parties should be acknowledged as independent nations or sovereign States. A war may exist where one of the belligerents claims sovereign rights as against the other. 66 '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 on. 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 Sovereign, the world acknowledges them as belligerents, and the contest as 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 misery 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. 666 "A civil war,' says Vattel, 'breaks the bands of society and Government, or at least suspends their force and effect; it produces in the nation two independent parties, who consider each other as enemies, and acknowledge no common judge. Those two parties, therefore, must necessarily be considered as constituting, at least for a time, two separate bodies, two distinct societies. Having no common superior to judge between them, they stand in precisely the same predicament as two nations who engage in a contest and have recourse to arms. This being the case, it is very evident that the common laws of war— r-those maxims of humanity, moderation, and honour-ought to be observed by both parties in every civil war. Should the Sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will |