Chap. V. that recognition may be conceded, but that it ought not to be withheld. If this be true, as I have no doubt it is, the change of expression will denote merely a change in the point of view from which we contemplate the rule. Regarded as giving an advantage to the belligerent, it confers a right on the belligerent: regarded as securing protection to the neutral, it confers a right on the neutral.

On this assumed right the Government of the United States acted, when, without previous communication with neutral Governments, it declared a blockade and proceeded to enforce it against neutral vessels. The Confederate Government acted on the same assumed right in proposing to issue letters of marque. And it must be a confused mind which fails to see that, if the right existed on one side, it existed also on the other—-or, in other words, that any rule of international law which may be invoked as against neutrals by either belligerent may be equally invoked by both.

If it be asked when and how foreign nations may recognize the existence of a state of war, the answer is easy. They may recognize it as soon as it exists, and in whatever way they please. They are at liberty, if they think fit, to wait until their ships are actually detained or captured by either belligerent; they are equally at liberty to anticipate these contingencies by an early notification; and this latter course, which is the more prudent of the two, is commonly pursued by States which are near to the theatre of hostilities or have a large mercantile marine. If it be further asked what constitutes a state of war-where the line which divides it from a mere insurrection is to be drawn-what amounts to a sustained struggle-what quantity of force is necessary, and what degree of organization ?—the answer must be that these terms, though intelligible enough, and not too vague for common use, do not

admit of precise definition. It would be trifling with Chap. V. language to dignify by the name of war the rebellion of which Massachusetts was the scene in 1786, and it would be equally trifling with language to refuse it to the late contest in America. A Government which has itself begun to exercise belligerent rights can raise, of course, no objection on this score. This is one of those propositions which appear too obvious to be stated, till experience shows that they are not too obvious to be overlooked.2

1 If it be asked (as it sometimes is) whether the moral quality of an act of violence or rebellion can be affected by the number or fewness of those who take part in it, by their organization, their prospects of success, and the like, the answer is, that this is so far from being the true question at issue that it has nothing at all to do with it. But it is clear that these and other like considerations may affect, and that materially, the moral quality of the act. To stab a policeman, and to take up arms in a civil war, are not acts of the same class or on the same level, though the motive, and the object sought to be obtained, may have been in both cases the same,

* The American precedents on the subject of this Chapter may be read in Lawrence's Wheaton (1863) p. 40, note, and more fully in a more recent work by the same author, of which only the first two volumes have as yet appeared (Commentaire sur les Eléments du Droit International et sur l'Histoire des Progrès du Droit des Gens de H. Wheaton), in Mr. Harcourt's Letters (Letters of Historicus, 1863), and other well. known books. Itself the offspring of a successful revolt and a war of inde pendence waged by land and sea against the parent State, the American Commonwealth has generally adhered with great steadiness to two principles:

1. That questions of sovereignty and independence are to be treated as questions of fact, and hence that, where a community has forcibly separated itself from another, of which it formed an integral part and which still claims dominion over it, recognition should follow, without reference to the merits of the original controversy, on clear evidence, but only on clear evidence,-that the revolted community has established its independence. This course the Government of the United States has pursued whenever the question arose, at the cost of "a transient estrangement of good-will in those against whom it has by force of evidence been compelled to decide."-(President Jackson's Message in Relation to Texas, 1836.)

2. That, in a struggle for independence carried on by a revolted portion of the State against the State itself, foreign nations may and

Chap. V.

Another observation may be added to the foregoing. A person making war in any customary way, under the flag of a de facto Government, against a Government which has a claim on his allegiance, is unquestionably a rebel; but it is a mistake to suppose that he can be brought under the condemnation of International Law by calling him a pirate. Piracy is said to be an offence against the law of nations. It is really punished, like every other crime, as an offence against the criminal law of the country in which the offender is tried; the peculiarity of it is, that it is everywhere recognized as a crime, has a common definition, which is everywhere accepted (though by the laws of some countries the stigma and the punishment of piracy have been affixed to other crimes also), and is justiciable everywhere. A pirate is not entitled to the protection of any nationality, nor is the ship in which he sails and which is under his control reputed to be a ship of any nation. And, as he is liable to be tried in one country as much as in another, an acquittal in one country may be pleaded to an arraignment in another. The reason why this crime is taken out of the general classification of crimes and

should maintain a strict and impartial neutrality, opening their ports to both parties, and on the same conditions, and not interfering in favour of either to the prejudice of the other.-(President Monroe's Third Annual Message, 1819.)

The second proposition, with reference especially to the question, in what cases a revolted mass of population should be recognized as belligerent, is stated with great clearness in a report presented to the French Chamber of Deputies in February 1864, on a proposal to "recognize" the Polish insurgents.-(Lawrence, Commentaire, vol. i, p. 185.)

I may here refer to the "Proclamation of the President of the United States for the Prevention of Unlawful Interference in the Civil War in Canada" (5th January, 1838). This Proclamation spoke of the Civil War begun in Canada," and proceeded to warn all persons against "compromitting the neutrality" of the Government of the United States. No disturbance could well be more distinctly local than that which had then broken out in Canada; it was a rising of discontented persons who had taken arms against the Government without any pretence to civil or military organization.

thus placed by itself is, that the danger and alarm Chap. V. which it creates are common to all men. It is because a pirate is dangerous to everybody that he bears a caput lupinum, may be seized by anybody, and punished anywhere. And it is evident that, if the accepted definition of piracy includes offences which have not this character, it is too loose for its purpose. The extent of the danger and alarm created by any class of violent acts depends primarily on the nature of the motive by which they appear to be inspired. Thus, robbery is more generally dangerous than revenge, because he who robs one man would probably rob another, whilst a person desires to be revenged on those only whom he believes to have injured him; and robbery is dangerous generally, although the robber may not have formed the intention of committing more robberies than one. But a rebel is not dangerous to anybody except the Government against which he is fighting and its adherents, unless he makes, of the belligerent character which he assumes, a cloak for indiscriminate plunder; and in the chance that he may do this, if there be no one to keep him in order, lies the only conceivable plea-and that an insufficient one-for his being hunted down as a pirate. The definition of a pirate ought not, therefore, to include a rebel. I leave to persons versed in criminal law the questions whether an animus furandi or lucri faciendi, in the strict sense of the phrase, be necessary to constitute the legal offence of piracy; whether, in the absence of it, proof of any other criminal intent would be sufficient; and whether the animus belligerandi would be held to be such a criminal intent by the tribunals of another country, the Executive Government of which had not recognized the existence of a war. The inquiry whether a rebel in a civil war, who has committed no general depredations, could under any circumstances be tried and punished as a pirate by the courts of a foreign country, depends on the answer which may be

Chap. V.

given to these questions. But it is clear, I think, that at any rate he ought not to be so tried and punished. The acts of Semmes and Maffitt differed from those of Forrest and Morgan only in being done at sea instead of on land; and they were not, more than those, proper objects for a criminal prosecution in England, France, or Spain. If, therefore, a declaration of neutrality by the Government be really necessary to prevent such an abuse of criminal justice-which I doubt—or to relieve the question from uncertainty, these must be reckoned among the legitimate and useful effects of such a declaration. So far as it operates as an instruction to the officers of the Government, it is an instruction to abstain from treating these persons as that which they are not, and to treat them as that which they are.1

1 "Piracy is robbery or a forcible depredation on the high seas, without lawful authority, and done animo furandi and in the spirit and intention of universal hostility. It is the same offence at sea with robbery on land, and all the writers on the law of nations and on the maritime law of Europe agree in this definition."-Kent, Commentaries, part i, section ix.

The reader will find the whole subject well discussed and all the principal authorities referred to in Abdy's edition of Kent's Commentaries on International Law, ch. xi; Lawrence's Wheaton (second annotated edition), p. 246, note; Dana's Wheaton (1866), p. 192, note, and p. 196, note; and Phillimore's Commentaries on International Law, ch. xx.

The question whether Confederate privateersmen taken very soon after the commencement of the war could be convicted of piracy, was raised in the case of the crew of the Savannah, tried at New York, and of William Smith, one of the crew of the Jeff. Davis, tried at Philadelphia, both on the 22nd October, 1861. Judge Nelson, the Judge of the Supreme Court who tried the crew of the Savannah, instructed the jury, that, by the general law of nations, a pirate was one who roved the sea in an armed vessel, without a commission from any Sovereign State, on his own authority, and for the purpose of appropriating to himself whatever vessels he might meet. But the evidence in this case showed that the design of the prisoner Baker, the captain of the Savannah, was to depredate only on the vessels of one nation,—the United States, an offence which fell short of piracy under the law of nations. But there were special laws of the United States establishing and defining piracy. The particular law applying to this case was that of 1820, which says: "If any person shall upon the high scas commit the