CHAPTER V. General Remarks on the effect of a Civil War on International Relations. -Sovereignty, what it is, and how affected by a Revolt.-Sovereignty de jure and de facto.-Effect of a Revolt, while it lasts, in displacing assumptions common to Municipal and International Law. Difficulties thus created, and how they are met.-Neutrality of Foreign States during a Civil War.-Belligerent Rights, what they are, when they arise and expire, and on what ground the recognition of them proceeds.-A Rebel not a Pirate. We have reached a point at which the revolt and its consequences began to affect the international relations of the United States with other Powers. We are on the confines, therefore, of the domain of International Law; and it may be convenient that, before going further, I should attempt to state, as clearly and concisely as I am able, some simple propositions which meet us at the outset. The collection of rules called International Law assigns to all Sovereign States certain rights and obligations. These rules are, in fact, opinions which have acquired a force analogous to that of laws from their general acceptance, from having been often acted upon, and from the sense that the recognition of some fixed standards for the regulation of conduct and the adjustment of disputes is a matter of great and universal convenience. When we speak of an international obligation, we mean that there is a rule which, as between nations, enjoins or forbids a given act, and that this rule is the accepted measure, so far as it goes, of what is just or unjust in a given case. The force of the rule, whatever it be and from whatever source derived, constitutes the obligation, and every nation against which the rule may be invoked is said to be bound or obliged by it. By an international right we mean a claim to the performance of an international obligation. By a Sovereign State we mean a community or number of persons permanently organized under a Sovereign Government of their own; and by a Sovereign Government we mean a Government, however constituted, which exercises the power of making and enforcing law within a community, and is not itself subject to any superior Government. These two factors, one positive, the other negative-the exercise of power, and the absence of superior control-compose the notion of sovereignty, and are essential to it. The question whether a given community is a Sovereign State, and the question who is or are sovereign in a given community, are thus, properly speaking, pure questions of fact. The rebellion of part of a community against the Sovereign Government has the effect, while it lasts, of paralyzing or suspending the actual sovereignty of the Government as to the rebellious part. If successful, it has the further effect of substituting a new Government without impairing the integrity of the State, or else of dividing the community itself into more States than one. A new State thus created has the same general rights and obligations as others, and is entitled to have them acknowledged, since the reasons on which those rights and obligations depend are good for all States indiscriminately, without reference to their origin; and it is, as we have seen, only a question of fact whether a community which lays claim to the character of a State be such or no. An acknowledgment by other States that this character has actually been acquired by a revolted community, is usually spoken of as a recognition of its independence. Isolated acts of resistance to the law, local risings Chap. V. Chap. V. soon suppressed, do not suspend or interrupt the sovereignty of the Government. The power is there; all that is necessary is to exert it. Sovereignty, independence, subjection, are permanent conditions, though the degree of permanence is incapable of precise definition. A revolted community seldom succeeds in establishing a Government, and achieving independence, at a blow; and some time must usually elapse before it can be safely and prudently recognized as independent by other nations. There is commonly a period of transition and struggle, until the expiration of which it is uncertain whether the old state of things will be re-established or no. During this period the sovereignty of the original Government over its refractory subjects has really ceased to exist, for power which cannot be exercised is not power: there remains only the hope or expectation that it will be restored, coupled in the minds of its adherents with the opinion that it ought to be restored-an opinion which is expressed by the phrase "Sovereignty de jure." A de jure Government is one which, in the opinion of the person using the phrase, ought to possess the powers of sovereignty, though at the time it may be deprived of them. A de facto Government is one which is really in possession of them, although the possession may be wrongful or precarious. This is a period in which troublesome questions are likely to arise, both in respect of the administration of law within the country thus divided against itself and in respect of its international relations. For both municipal and international law assume, as they necessarily must, the existence in every State of a Government exercising a reasonable and substantial, though not an absolute, control within every part of its dominions; and on this basis all their rules are framed. But this assumption may be displaced in particular cases, just as the analogous assumption, common to all law whatsoever, that men are masters of their own actions, is displaced in cases where the mind is unhinged and the understanding Chap. V. clouded by disease. Here is a Government, supposed to be sovereign, at war with those who are supposed to be its subjects; here is a body of people supposed to be subject to a Sovereign against whom they are fighting with all their might, and who is fighting with all his might against them. Such anomalies baffle the application of general rules; and, in order to provide for them without breaking in more than is absolutely necessary on the rule itself, nations and Governments have had recourse to shifts and expedients. Thus it is clear-although courts of justice may shut their eyes to it-that the character of a subject or citizen of a State, and that of a public enemy of the same State, are really incompatible with one another. Yet it has been decided, as we have already seen, in the Supreme Court of the United States, not only that the same person may be both a citizen and a public enemy, but that this double character belonged in fact to all persons residing in the Confederate States, whether they had personally shared in the revolt or no. Their status, in the view of the law, was changed by the acts of others, in which they had not participated. A citizen is entitled to claim, for his property as well as his person, the protection of the law, and is liable to punishment for breaking the law; a public enemy, as such, is exempt from that liability, and has no claim to that protection. Loyal Southerners, resident in the South, though regarded by the law as citizens, were placed, as regards their property, out of the pale of its protection; disloyal Southerners, taken in arms against the United States, though regarded by the law as malefactors, were not punished as such, but detained and exchanged as prisoners of war. Further, the Federal Courts, whilst regarding the Governments of the revolted States as unlawful because in open rebellion, have recognized the fact that they were really Governments in a country where there was no other, and Chap. V. have regarded their acts as valid, so far as those acts were unconnected with the rebellion.1 If it is found in practice that considerations, too powerful to be resisted, force such expedients and compromises as these on the authorities whose duty it is to compel obedience to the laws; it would certainly be very unreasonable to expect foreign nations, who are under no such obligation, to apply a more rigid rule. The practice of nations does not require this of them. As long as it is uncertain whether the new Government will succeed in establishing its independence, it is usual for them to abstain from official intercourse with it. But the existence of a large body of people yielding 1 In the case of Texas v. White (Wallace, vii, 700), the question arose whether a sale during the war, under the authority of the Texas Legislature, of certain United States' Bonds, transferable by delivery and belonging to the State of Texas, was valid. In the course of the judgment, delivered by Chief Justice Chase, the Court made the following observations: 66 "The Legislature of Texas, at the time of the repeal, constituted one of the Departments of a State Government established in hostility to the Constitution of the United States. It cannot be regarded, therefore, in the Courts of the United States as a lawful legislature, or its acts as lawful acts. And yet it is a historical fact that the Government of Texas, then in full control of the State, was its only actual Government; and certainly, if Texas had been a separate State and not one of the United States, the new Government, having displaced the regular authority, and having established itself in the customary seats of power and in the exercise of the ordinary functions of administration, would have constituted, in the strictest sense of the word, a de facto Government; and its acts, during the period of its existence as such, would be effectual, and in almost all respects valid. And to some extent, this is true of the actual Government of Texas, though unlawful and revolutionary as to the United States. "It is not necessary to attempt any exact definitions within which the acts of such a State Government must be treated as valid or invalid. It may be said, however, that Acts necessary to peace and good order among citizens, such for example as Acts sanctioning and protecting marriage and the domestic relations, governing the course of descents, regulating the conveyance and transfer of property, real and personal, and providing remedies for injuries to person and estate, and other similar acts, which would be valid if emanating from a lawful government, must be regarded in general as valid when proceeding from an actual though unlawful |