to overthrow the Government, and the Government is employing military Chap. VII. and naval forces to repress it. But these facts do not constitute a war presenting two belligerent Powers, and modifying the national character, rights, and responsibilities, or the characters, rights, and responsibilities of foreign nations. It is true that insurrection may ripen into revolution, and that revolution thus ripened may extinguish a previously existing State, or divide it into one or more independent States, and that if such States continue their strife after such division, then there exists a state of war affecting the characters, rights, and duties of all parties concerned. But this only happens when the revolution has run its successful course." 1

The passages which have been quoted will admit but one construction. They were a rejection, in the most unqualified form, of the proposition that the existence of war is a simple matter of fact, to be ascertained as other facts are-and an assertion, in the most unqualified form, of the dogma that there can be no war, so far as foreign nations are concerned, and, therefore, no neutrality, so long as there is a sovereignty de jure. All circumstances showing the scale upon which the contest was carried on were summarily rejected from consideration. The fact that the people of the Confederate States were not in obedience to the Government of the United States, but in arms against it, and obeyed another Government of their own, was likewise to be rejected from consideration. There could be no war, because the United States were sovereign. In a contest between a sovereign and his subjects, foreign nations could not assume the position of neutrals. This condition of affairs must last until the revolution should have "run its successful course," and the Union should have been divided into two or more communities completely independent of each other. If after such division the strife between them should be continued, there would then be a war. Before it there could be no war. In short, a recognition of belligerency can never properly precede-it can only follow-a recognition of independence.

1 Mr. Seward to Mr. Dayton, 17th June, 1861.

M

Chap. VII.

These positions were perfectly clear and consistent. They were also erroneous, unreasonable, flatly opposed to the settled opinion and practice of nations, and especially to the settled opinion and practice of the United States. Although asserted in Mr. Seward's despatches, which were afterwards published in America, the Government did not at that time attempt practically to enforce them; but it is clear that they continued to exercise an influence on the course of the Government, and still more on that of public opinion. When, however, the question entered the stage of controversy, they were too plainly untenable to be maintained. Endeavours were then made to place it on a different ground.

Stripped of mere rhetoric, and reduced (as far as it admits of this) to the form of tangible propositions, the case alleged against England on behalf of the United States in the later despatches was in substance as follows:

1. That at the date of the Queen's Proclamation of neutrality there was in fact no war, or at least no maritime war, between the United States and the people of the revolted States.

1 They re-appear, indeed, in a despatch of Mr. Seward's (in which he reviews the case and re-states the American claim) so late as 1867:

"It will be found, we think, that all nations which have desired to practice justice and friendship towards a State temporarily disturbed by insurrection, have forborne from conceding belligerent privileges to the insurgents in anticipation of their concession by the disturbed State itself. A nation which departs from this duty always practically commits itself as an ally to the insurgents, and may justly he held to the responsibilities of that relation."—Mr. Seward to Mr. Adams, 12th January, 1867.

Since it must always be an undecided question, until the contest is over, whether a revolt will prove to be temporary or permanent, this is equivalent to saying that to recognize a revolted community as belligerent before it has been acknowledged as such by its original Sovereign, is always a breach of international duty, which converts the recognizing Power into an ally of the one and an enemy of the other-a proposition truly amazing in the mouth of an American statesman.

·

2. That after it there was a maritime war, of which Chap. VII. the Proclamation was the cause.

3. That, by the Queen's Proclamation, acts done in British ports were made lawful, which would otherwise have been unlawful and criminal; and that it thus enabled the Confederates to procure ships of war and send them to sea, which otherwise they could not have done, and to obtain goods and money in England.

4. That it enabled these ships to cruise, which otherwise they would have been unable to do.1 .

5. That, the existence of a state of war, even at sea, does not by itself justify a foreign Power in declaring itself neutral. That it must further be shown that such a declaration is "necessary," in order to ward off some positive inconvenience from the foreign Power or its subjects. That the foreign Power is not to be the sole judge whether it has reason to apprehend such an inconvenience, and that this may be contested by the Sovereign whose subjects are in arms against him. That

1 "It was my wish to maintain

"1. That the act of recognition by Her Majesty's Government of insurgents as belligerents on the high seas, before they had a single vessel afloat, was precipitate and unprecedented;

"2. That it had the effect of creating those parties belligerents after the recognition, instead of acknowledging an existing fact;

"3. That this creation has since been effected exclusively from the ports of Her Majesty's kingdom and its dependencies, with the aid and co-operation of her Majesty's subjects."-Mr. Adams to Earl Russell, 20th May, 1865.

"The assumed belligerency of the insurgents was a fiction—a war on paper only, not in the field-like a paper blockade, the anticipation of supposed belligerency to come, but which might never have come if not thus anticipated and encouraged by Her Majesty's Government. Indeed, as forcibly put by Mr. Adams, the Queen's Declaration had the effect of creating posterior belligerency instead of merely acknowledging an actual fact.

"In virtue of the Proclamation, maritime enterprises in the ports of Great Britain which would otherwise have been piratical, were rendered lawful; and thus Great Britain became, and to the end continued to be, the arsenal, the navy-yard, and the treasury, of the insurgent Confederacy."-Mr. Fish to Mr. Motley, 25th September, 1869.

Chap. VII. in the absence of "necessity" such a declaration is " premature; " and that being premature it is "wrongful and "injurious," and warrants a demand for "redress and indemnity."

6. That no such necessity existed at the time of the issue of the Queen's Proclamation, nor afterwards; or at rate that none would have existed afterwards but for the issue of the Proclamation.1

any

This is, I think, a fair and true statement of the propositions which may be extracted from the despatches of the American Government.

The case of the British Government is contained in the counter-propositions which follow:

1. That a war carried on by a blockade of ports and coasts on the one side, and on the other by cruisers and privateers, is a maritime war; and that it is not the less a maritime war because there is a disparity of strengthbecause the blockade is successful, and the cruisers and privateers are few. That such a war had been virtually

1 "The issue between the United States and Great Britain, which is the subject of the present correspondence, is not upon the question whether a civil war has recently existed in the United States, nor is the issue upon that other question, whether such a civil war was actually existing there at the date of the Queen's Proclamation of neutrality. . What is alleged on the part of the United States is, that the Queen's Proclamation, which by conceding belligerent rights to the insurgents lifted them up for the purpose of insurrection to an equality with the nation which they were attempting to overthrow, was premature because it was unnecessary, and was in its operation unfriendly because it was premature. The United States remain of opinion that the Proclamation has not been justified on any ground of either necessity or moral rights; that, therefore, it was an act of wrongful intervention, a departure from the obligations of existing Treaties, and without sanction of the law of nations."-Mr. Seward to Lord Stanley, 14th January, 1867.

.

"This Government insisted in the beginning, and has continually insisted, that the assumption of that attitude, unnecessarily and prematurely, would be an injurious proceeding, for which Great Britain would immediately come under a full responsibility to justify it or to render redress and indemnity."-Mr. Seward to Mr. Adams, 27th August, 1866. See also Mr. Fish to Mr. Motley, 25th September, 1869.

declared, and was in existence and in active operation, Chap. VII.

before the Proclamation was issued, and for several weeks at least before it could have been known in the Confederate States, and therefore could not possibly have been created by it.

2. That the Proclamation did not make lawful any acts within British territory which would otherwise have been unlawful; nor enable, nor in any way assist, the Confederates to procure ships of war in England or elsewhere, or to send them to sea; and that a recognized belligerent is no more able to do this in England than an unrecognized belligerent is.1

3. That the toleration extended to the Confederate cruisers consisted substantially in not excluding them from British ports, and in suffering them to remain there for a limited time, and to purchase in the market limited supplies of provisions and of coal. That Great Britain had a right to accord this permission to vessels which were not piratical nor engaged in any enterprise prohibited by the law of nations. That she would have had the same right had no declaration of neutrality been issued. That nothing could be more unreasonable than to expect her to treat as pirates persons who were not such, and who were not so treated by the American Government itself. And that the permission accorded to them was likewise accorded to Federal cruisers, and by them far more largely used.

4. That, given the existence of a state of war, any foreign Power has a right to declare itself neutral, whose territory the war may approach, or whose subjects may be brought into contact with it. That the question

1 Nor does such a Proclamation, as some writers seems to imagine, give to the revolted community any locus standi in the Courts of the neutral country, or any power which it would not otherwise have to enter into contracts there, to buy goods or borrow money, whether for the purposes of the war or for any other purpose. In the eye of the law it continues to be what it was before-a mass of population in arms against the Government of a friendly State.