obedience to no recognized Government, and therefore Chap. V. formally shut out from the pale of public law, is in itself an evil, and may be a source of grave inconveniences. If such persons commit wrongful acts against the subjects of other States, to whom is complaint to be made, and who is responsible? Their original Sovereign? But he is helpless; no redress can be obtained from him; and he would refuse, with justice, to be answerable for the misdeeds of those who are wholly beyond his control. Foreign nations, which must for awhile endure these inconveniences, have a right to protect themselves and their subjects against them in every reasonable way. In

Government, and that acts in furtherance or support of rebellion against the United States, or intended to defeat the just rights of citizens, and other acts of like nature, must in general be regarded as invalid and void."

Applying this test, the Court held the sale invalid as against the State of Texas.

In Thorington v. Smyth and Hartley, decided by the Supreme Court in December 1868, it was held that, where a contract had been made in Alabama during the war for the purchase of an estate, the price to be paid in Confederate notes, a Bill to enforce the vendor's lien for the unpaid purchase-money could be sustained, after the restoration of peace, in a Court of the United States.

"It is familiar history," said Chief Justice Chase, "that early in 1861 the authorities of seven States, supported as was alleged by popular majorities, combined for the overthrow of the national Union, and for the establishment within its boundaries of a separate and independent Confederation. A governmental organization representing these States was established at Montgomery, in Alabama, first under a Provisional Constitution, and afterwards under a Constitution intended to be permanent. In the course of a few months four other States acceded to this Confederation, and the seat of the central authority was transferred to Richmond, in Virginia. It was by the central authority thus organized, and under its direction, that civil war was carried on upon a vast scale against the Government of the United States for more than four years. Its power was recognized as supreme in nearly the whole of the territory of the States confederated in insurrection. It was the actual Government of all the insurgent States, except those portions of them protected from its control by the presence of the armed forces of the national Government." The precise character of such a Government, the Court proceeded, can

Chap. V.

formal communications, exchanged as occasion may arise, with the persons who actually exercise control within the revolted community, are among the means of doing this. It is an expedient, however, which like most temporary makeshifts, is troublesome and imperfect. As to the contest itself, it is to foreign Powers a war in which they are neutral; the contending parties-two portions of a people with the whole of which they have been accustomed to live in friendship—are to them two belligerents, between whom they have to hold an even hand.

Neutrality, in wars which do not extend to the

hardly be defined with exactness. It was a de facto Government; but not "such a Government in its highest degree." This exists where a usurper has succeeded not only in establishing his power over particular localities, but in gaining actual possession of the whole authority of the Sovereign. It was analogous rather to cases in which a temporary but complete authority over part of a country is established by conquest. (United States v. Rice, Wheaton's R., iv, 253; Fleming v. Page, Howard's R., ix, 614.) The Government here" did not indeed originate in lawful acts of regular war, but it was not on that account less actual or less supreme. It is to be observed that the rights and obligations of a belligerent were conceded to it in its military character very soon after the war began, from motives of humanity and expediency, by the United States. The whole territory controlled by it was thereafter held to be enemies' territory, and the inhabitants of that territory were held to be in most respects enemies. To the extent, then, of actual supremacy, however gained, in all matters of government within its military lines, the power of the insurgent Government cannot be questioned. That supremacy did not justify acts of hostility to the United States. How far it should excuse them must be left to the lawful Government upon the re-establishment of its authority. But it made obedience to its authority in civil and local matters not only a necessity but a duty; without such obedience civil order was impossible." Hence, although notes of the Confederate Government were, as contracts, mere nullities, they must be regarded as having constituted, while the revolt lasted, the actual currency of the Confederate States, exactly as if they had been issued by a foreign Government temporarily occupying the territory of those States. Contracts, therefore, made in that currency ought to be enforced "after the restoration of peace," and the vendor was held entitled to recover "the actual value of the notes at the time and place of the contract in lawful money of the United States."

sea, is for the most part a merely negative condi- Chap. V. tion it is abstinence from active participation in a strife with which the neutral can rarely be brought into contact against his will. But maritime hostilities are waged on the common highway of nations, in the midst of peaceful traffic, with which they are liable to interfere, and which is liable to interfere with them; and International Law, yielding to the necessities of the case, has assigned to the belligerent, as against the neutral, certain specific rights and powers, and has regulated the exercise of them by a code of rules, which, though rude and imperfect, is not on the whole inequitable. Under this code neutral nations suffer, and are bound to suffer, their merchant-ships to be forcibly detained and searched on the high seas, and the property of their subjects to be seized and confiscated for acts which in time of peace would fall within the common course of legitimate trade. These neutral 'obligations," these belligerent "rights," arise when war arises, and cease when it ceases: in peace the code is dormant, it is active only during war; and when it revives, it revives as a whole. To claim or to concede the exercise of any belligerent right as against a friendly power, is to recognize the existence of war, with the entire train of consequences attached to the fact by the law of nations; to claim the discharge of any neutral obligation is to concede the exercise of all neutral rights; to concede to one party the exercise of any belligerent right, is either to become the ally and adherent of that one, or to concede all such rights to both.

The code of maritime war, like every other branch of International Law, is framed to govern the acts and relations of Sovereign States. The wars which it contemplates are wars between such States; it assumes the existence on each side of a responsible authority competent to enforce the observance of rules, commission

I

Chap. V. public ships, and constitute Courts of Prize. Theoretically it has no place in a struggle between a Sovereign Government and its rebellious subjects; theoretically, no belligerent right could in such a struggle be exerted against a friendly nation, because the latter would be disabled from exercising the rights of a neutral. But revolters do not admit that they are subjects, and cannot be expected to act as if they did; and it is certain that, when they have acquired sufficient force and organization to fight as an independent nation fights, they will employ, as far as they can, all those means which independent nations have deemed indispensable for the effectual prosecution of hostilities. The Government which they are assailing will, under the same circumstances, as certainly use the same weapons against them. Indeed, if we consider what those belligerent rights of which we are speaking are, we shall see that a refusal of them by neutral nations would never be tolerated by any body of people actually engaged in war, and strong enough to resent it. No Government with arms in its hands, whatever its character or origin, would tamely submit to see its blockades set at nought and its plans frustrated by the conveyance to the enemy, under the very guns of its own fleet, of despatches, troops, or munitions of war. Such a refusal would speedily be followed by hostile collisions on every sea, and the refusing nation would find itself engaged, against its will, in irregular warfare with those against whom it had no cause of quarrel.

A simple practical solution of this difficulty is found in recognizing both the contending parties as belligerents that is (to expand the phrase into an expression of its full meaning), as entitled, in respect of the neutral, to all those exceptional rights or powers with which Sovereign States at war. with one another are clothed by International Law. And since these rights can only be regularly exercised by means of a certain

known machinery, the recognition of them draws after it Chap. V. a recognition of the machinery. The sentences, therefore, of Prize Courts sitting within the territory occupied by a population in revolt and under the authority of a Government established there-commissions issued by that Government-the flag which it has chosen-are accepted and recognized within the jurisdiction of the neutral, as emanations and symbols not, indeed, of the sovereignty to which the Government lays claim, but of that substantial though temporary and precarious power which it possesses in fact. The flag and commission are not those of a Sovereign State; but they are those of an organized body of persons, who, so far as waging war goes, are able to act as a Sovereign State; for the purposes of the war, therefore, they are permitted by the neutral to confer within his jurisdiction the same substantial powers and immunities as if the revolted community were really Sovereign.

It is sometimes said that recognition to this extent is due as of right to any body of people whose numbers and organization enable them to carry on regular warfare, and who are actually engaged in it. It is not only the right of the neutral to recognize-it is the right of the belligerent to have recognition accorded to him. I am averse to the use of language which appears vague and abstract. But this, I think, cannot be deniedthat recognition in such cases has been sanctioned by the practice and opinion of nations, not solely with a view to the protection of the neutral, but on wider grounds of general expediency. It is generally expedient that the ordinary rules of war should extend, as far as possible, to civil wars. The restraints which they impose are here as wholesome, their influence in making war regular and humane and in confining its range are as useful; all the reasons of convenience on which they repose apply to these wars with as much force as to others. These considerations appear to show not only