whether they are founded upon a good or upon a bad title. Such an inquiry could answer no good purpose, and would furnish ample occasion to disturb the peace of nations.'1

1 Wildman, International Law, vol. i. p. 57; Wicquefort, l'Ambassadeur, etc. lib. i. pp. 40, 57, 58.

the man-of-war's men in the Southern fleets, and to every soldier in the Southern army, none of whom are acting under the authority of a recognised Government. The Constitution defines treason to be the levying of war against the United States and the giving of aid and comfort to its enemies. All of them are engaged in doing this; and although the Southern privateersmen may fall specifically under the provisions of the Act defining piracy, the guilt of the one is precisely the same as that of the other. The question then arises-as there is in point of fact no difference between them-is every seaman or soldier that shall be taken in arms against the Government to be hung as a traitor or a pirate? If the matter is to be left to the courts, conviction and sentence of death must follow in every instance. In the case of the "Jefferson Davis," the court said that during civil war, in which hostilities are prosecuted on an extended scale, persons in arms against the established Government captured by its naval or military forces are often treated not as traitors or pirates, but according to the humane usages of war. They are detained as prisoners until exchanged or discharged on parole, or, if surrendered to the civil authorities and convicted, they are respited or pardoned; but the court said this was a matter with which courts and juries had nothing to do; that it was purely a question of Government policy depending upon the decision of the Executive or Legislative Department of the Government, and not upon its judicial organ.

'If this view be correct, the disposition of this matter rests exclusively with the Government, and its decision must be pronounced sooner or later, as every day increases the complication and difficulties growing out of the present state of things. Are the Courts to go on? Is the Government prepared to say that every man in arms against the United States upon the land or upon the water is to be tried and executed as a traitor or pirate, either upon the ground that it is right, or upon the supposition that it will prove an effective means for suppressing the rebellion? That policy was tried by the Duke of Alva in the revolt of the seven provinces of the Netherlands, and 18,000 persons by his order suffered death upon the scaffold, the result being a more desperate resistance, the sympathy of surrounding nations, and the ultimate independence of the Dutch. Neither the constitution of the United States nor the act against piracy was framed in view of any such state of things as that which now exists. The civil war which now prevails is in its magnitude beyond anything previously known in history. The revolting States hold possession of a large portion of the territory of the Union, embracing a great extent of the sea coast and including some of our principal cities and harbours. They hold forcible possession of it by means of an army estimated at 300,000 men, and are practically exercising over it all the power and authority of government. They claim to have separated from the United States, to have founded a Government of their own, and are in armed resistance to maintain it. To reduce them to obedience, and to recover that of which they hold forcible possession, it has been necessary for us to resort to military means of more than corresponding magnitude, until the combatants on both sides have reached the prodigious number of 1,000,000 of men.

§ 22. The recognition' of the independence and sovereignty of a revolted province by other foreign States, when that independence is established in fact, is therefore a question of

1

Referring to the term 'recognition,' Mr. Canning stated in 1823 that the law of nations was entirely silent on this point,' but he attached this meaning to it :-'If the colonies say to the mother country, "We assert our independence," and the mother country answers, "I admit it," that is recognition in one sense. If the colonies say to another State, "We are independent," and that other State replies, "I allow that you are so," that is recognition in another sense of the term. That other State simply acknowledges the fact, or rather, its opinion of the fact. But without a treaty of alliance and co-operation, that latter recognition could have no such effect as tranquillising the State, and establishing and confirming its independence. Recognition, according to Mackintosh, is used in two senses—1st, as a technical term of international law, in which it denotes the explicit acknowledgement of the independence of a country by a State which formerly exercised sovereignty over it, such as the acknowledgement of the independence of Portugal and Holland by Spain and of the American colonies by Great Britain. 2nd. A neutral country by measures of practical policy may imply an acknowledgement of the independence of another. This is a virtual recognition, the most conspicuous part of which is the act of sending and receiving diplomatic agents. It implies no guarantee, no alliance, no aid, no approbation of the successful revolt, no intimation of an opinion concerning the justice or injustice of the means by which it has been accomplished. These are matters beyond the jurisdiction of the neutral. It would be an usurpation for it to sit in judgment on them. As a State it can neither condemn nor justify revolutions which do not affect its safety and are not amenable to its laws; a tacit recognition of a new State not being a judgment for the new Government nor against the old, is not a deviation from perfect neutrality or a cause of just offence to the dispossessed ruler. These doctrines are not even controverted by the jurists of the Holy Alliance. See Works of Mackintosh, vol. iii.

"The principal nations of Europe, recognising this state of things, have conceded to the rebellious States the rights of belligerents-a course of which we have no reason to complain, as we did precisely the same thing towards the States of South America in their revolt against the Government of Spain. It is natural that we should have hesitated to consider the Southern States in the light of belligerents before the rebellion had expanded to its present proportions; but now we cannot, if we would, shut our eyes to the fact that war, and war upon a more extensive scale than usually takes place between contending nations, actually exists. It is now, and it will be continued to be, carried on upon both sides by a resort to all the means and appliances known to modern warfare, and unless we are to fall back into the barbarism of the middle ages, we must observe in its conduct those humane usages in the treatment and exchange of prisoners which modern civilisation has shown to be equally the dictates of humanity and policy. For every seaman that we have arrested as a pirate, they have incarcerated a Northern soldier, to be dealt with exactly as we do with the privateersmen. We have convicted as pirates four of the crew of the "Jefferson Davis," and there are others in New York awaiting trial. Are those men to be executed? If they are, then by that Act we deliberately consign to death a number of our own officers and soldiers, the most of

policy and prudence only, which each State must determine for itself; but this determination must be made by the sovereign legislative or executive power of the State, and not whom owe their captivity and present peril to the heroic courage with which they stood by their colours in a day of disastrous flight and panic

"If such a course is to be pursued, it will not be very encouraging for the soldier now in arms for the maintenance of the Union, to know that what may be asked of him is to fight upon one side with the risk of being hanged upon the other, and in the face of the enemy with his line broken down, instead of rallying again, he may, in view of the possibility of a halter, deem it prudent to retire before the double danger. If, on the other hand, we convict these men as criminals and pause there, then the crime, of which we have declared them to be guilty, is not followed by its necessary consequence, the proper punishment. There is no terror inspired and no check interposed by such a procedure, for the plainest man in the South knows that the motive which restrains us from going further is the fact that execution of these men as pirates seals the doom of a corresponding number of our own people; that the account is equally balanced; that with ample means of retaliation they have the power to prevent, or if mutual blood is to be shed in this way, we and not they will have commenced it. By such a course nothing is effected, except to keep our own officers and soldiers in the cells of Southern prisons, subject to that mental torture produced by the uncertainty of their fate, which with the majority of men is more difficult to bear than the certainty of death itself, and obliges them to endure, in the ill-provided and badly-conducted prisons in which they are confined, sufferings, the sickening details of which are constantly before us in their published letters to their friends. "I little thought," writes the gallant Colonel Cogswell, of the regular service, "when I faced the storm of bullets at Edward's Ferry, and escaped a soldier's death upon the field, that it was only to be left by my country to die upon a gallows." And the nature of their sufferings will be understood when it is told that the noble-hearted and self-sacrificing Colonel Corcoran, was handcuffed and placed in a solitary cell, with a chain attached to the floor, until the mental excitement produced by the ignominious treatment, combining with a susceptible constitution and the infectious character of the locality, brought on an attack of typhoid fever. Shall this state of things continue to exist? Let us take counsel of our common sense. These men are treated as criminals, because, while we give to the Southern soldiers the rights of war (for numerous exchanges of soldiers have taken place), we convict the Southern mariner of a crime punishable with death. Is there any reason, even upon the grounds of policy, for making this distinction? We have by the blockade of the whole Southern coast cut the privateersman off from bringing his prize into the ports of the South for adjudication, and the ports of all neutral nations being closed against him for such a purpose, he is deprived of means of making lawful prize, and must eventually convert his vessel into a ship of war, or degenerate into a pirate by unlawful acts which will make him amenable to the tribunal of every civilised nation. The comparative injury that may be done to our commerce by the few privateers which it will be now in the power of the rebellious States to maintain upon the ocean is as nothing compared to the disastrous and lasting oonsequences to the whole nation-to its industry, its commerce, and its future-that would grow out of making this war one of retaliatory vengeance. We have the fruitful experience of history to admonish us, that in such acts are sown the seeds of the dissolution of nations, and especially of republics. By

by any subordinate authority, or by the private judgment of individual subjects. And until the independence of the new State is recognised by the government of the country of which it was before a part, or by the foreign State where its sovereignty is drawn in question, courts of justice, and private individuals, are bound to consider the ancient state of things as remaining unaltered.'

acceding to the rebellious States the rights of belligerents, at least to the extent of exchanging prisoners, whether privateersmen, men-of-war's men, or soldiers, we do not concede to them the rights of Sovereignty. There is a well-defined distinction between the two, recognised by the United States Court in the case of Rose v. Himley (4 Cranch, 241). One may exist without the other, and by exchanging prisoners, therefore, we concede nothing and admit nothing, except what everybody knows, that actual war exists, and that, as a Christian people, we mean to carry it on according to the usages of civilised nations.

'The existing embarrassment is easily overcome; further prosecutions can be stopped, and in respect of privateersmen who have been convicted, the President, acting upon the suggestion of the Court that tried them, can, by the exercise of the pardoning power, relieve them from their position as criminals, and place them in that of prisoners of war.

In conclusion, we are apt to forget that we are carrying on this war for the restoration of the Union, and that every act of aggression not essential to military success will but separate more widely the two sections from each other, and increase the difficulty of cementing us again in one nationality. We are to remember that the people of the South, whose infirmity it has been to have very extravagant ideas of their own superiority, and whose contempt of the people of the North has been in proportion to their want of information respecting them, have been hurried into their present position by the professional politicians and large landed proprietors. War, when conducted in accordance with the strictest usages of humanity, is a sufficiently bloody business, and if we are to add to its horrors by hanging up all who fall into our hands as traitors or pirates, we leave to the South no alternative but resistance to the last extremity.'

1 Wheaton, Elem. Int. Law, pt. i. ch. ii. § 10 et seq.; Martens, Nouvelles causes, etc. tome i. pp. 370-494; Garden, De Diplomatie, liv. ii. §6; Webster, Works, vol. vi. pp. 488-506; Kennet v. Chambers, xiv. How. R. p. 38; Hoyt v. Gelston, 3 Wheat. R. p. 324, note ; the ' Manilla,' 1 Ed. Ad. R., pt. i.; Bello, Derecho Internacional, pt. i. cap. i. §7; the 'Santisima Trinidad,' 7 Wheat. R. p. 305; The Pelican,' I Ed. Ad R. Appen. D. The City of Berne, in Switzerland, v. the Bank of England, 9 Ves., 347; Dolder v. the Bank of England, 10 Ves., 352; Ibid. 283; Thompson v. Powels, 2 Sim., 194; Taylor v. Barclay, Ibid. 213; the United States of America v. Wagner, 2 Law R. (Ch. App.), 582.

As a matter of municipal law, no person can contract with or assist a revolted colony, or a part of another State, without leave of his own Government, before the same have recognised the separate independence of the colony or part of a State. See Jones v. Garcia del Rio, 1 Turn. and Russ. 297; Yrisson v. Clement, 2 Car. and P., 223; the United States v. Palmer, 3 Wheat. 610; Cherriot v. Foussat, 3 Binn. 252. And it is submitted that those sections of the Foreign Enlistment Act, 1870 (33 and 34 Vict. c. 90), which prohibit illegal enlistment or building ships, &c., for any foreign State at war with any foreign State at peace with

§ 23. The sovereignty of a State may be lost in various ways. It may be vanquished by a foreign power and become incorporated into the conquering State as a province, or as one of its component parts; or it may voluntarily unite itself with another in such a way that its independent existence as a State will entirely cease. Again, two sovereign States may become incorporated into one, so as to form a new sovereign State in place of the other two whose independent existence, as States, is entirely destroyed by such incorporation.

Thus, the incorporation of the Seven United Provinces and the Austrian Low Countries, by the treaties of Vienna, under the Prince of Orange, as King of the Netherlands, was the union of two distinct sovereignties, forming a new single sovereign State. By the incorporation of Wales, Scotland, and Ireland, into Great Britain, and of Normandy and Brittany into France, these incorporated States lost their existence as distinct and substantive political bodies.1

§ 24. Questions of great importance sometimes arise with respect to the international effects produced by internal changes in the form of government, and by a change in the sovereignty of a State, with respect to its duties and obligations toward others. These questions relate to treaties, public debts, the public domain, private rights of property, and to responsibility for wrongs done to the governments or subjects of other States. We will consider these matters-Ist, with respect to the effects of a change in the internal form of the Government; 2nd, with respect to the effects of a dismemberment of a State by the revolt or loss of a province; 3rd, the effects of a division of one into two or more separate and independent States; and, 4th, the effects of an incorporation Great Britain, are by sect. 30 of the same Act extended to the case of a rebellion of such dimensions as to constitute a new Government or nationality; that last-mentioned section defines 'foreign State' to include any foreign prince, colony, province, or part of any province or people, or any person or persons exercising, or assuming to exercise, the powers of government in or over any foreign country, colony, province, or part of any province or people.' Therefore it would seem to be equally unlawful for a foreign State to hire or build a ship in British waters to employ against insurgents, or for insurgents to fit out the same under similar circumstances, against a Government in amity with Great Britain. Compare 59 Geo. III., c. 69, and case of the Salvador,' P. C. R.

Phillimore, On Int. Law, vol. i. § 125; Puffendorf, De Jure Nat. et Gent. lib. viii. cap. xii. § 9; Bello, Derecho Internacional, pt. i. cap. i. § 8. So also the gradual unification of Italy since 1859.