was upon this principle that the Supreme Court determined, in 1808, that the several States composing the Union, so far as regards their municipal regulations, became entitled, from the time when they declared themselves independent, to all the rights and powers of sovereign States, and that they did not derive them from concessions made by the British king. The treaty of peace of 1782 contained a recognition of their independence, not a grant of it. From hence it resulted, that the laws of the several State governments were, from the date of the declaration of independence, the laws of sovereign States, and as such were obligatory upon the people of such State from the time they were enacted. It was added, however, that the court did not mean to intimate the opinion, that even the law of any State of the Union, whose constitution of government had been recognized prior to the 4th of July, 1776, and which law had been enacted prior to that period, would not have been equally obligatory. (b) 14

The external sovereignty of any State, on the other hand, may rerequire recognition by other States in order to render it perfect and complete. So long, indeed, as the new State confines its action to its own citizens, and to the limits of its own territory, it may well dispense with such recognition. But if it desires to enter into that great society of nations, all the members of which recognize rights to which they are mutually entitled, and duties which they may be called upon reciprocally to fulfil, such recognition becomes essentially necessary to the complete participation of the new State in all the advantages of this society. Every other State is at liberty to grant, or refuse, this recognition, subject to the consequences of its own conduct in this respect; and until such recognition becomes universal on the part of the other States, the new State becomes entitled to the exercise of its external sovereignty as to those States only by whom that sovereignty has been recognized.

§ 22. The identity of a State consists in its having the Identity same origin or commencement of existence; and its dif- of a State. ference from all other States consists in its having a different origin or commencement of existence. A State, as to the individual members of which it is composed, is a fluctuating body; but in respect to the society, it is one and the same body, of which the existence is perpetually kept up by a constant succession of (b) Cranch's Rep. iv. 212, M'Ilvaine v. Coxe's Lessee. [14 Harcourt v. Gaillard, 12 Wheat. Rep. 527.]-D.

new members. This existence continues until it is interrupted by some change affecting the being of the State. (a)

ternal revo

How af- If this change be an internal revolution, merely alterfected by in- ing the municipal constitution and form of government, lution. the State remains the same; it neither loses any of its rights, nor is discharged from any of its obligations. (b)

The habitual obedience of the members of any political society . to a superior authority must have once existed in order to constitute a sovereign State. But the temporary suspension of that obedience and of that authority, in consequence of a civil war,. does not necessarily extinguish the being of the State, although it may affect for a time its ordinary relations with other States.

Conduct of foreign States towards an

involved in

civil war.

§ 23. Until the revolution is consummated, whilst the civil war involving a contest for the government continother nation ues, other States may remain indifferent spectators of the controversy, still continuing to treat the ancient government as sovereign, and the government de facto as a society entitled to the rights of war against its enemy; or may espouse the cause of the party which they believe to have justice on its side. In the first case, the foreign State fulfils all its obligations under the law of nations; and neither party has any right to complain, provided it maintains an impartial neutrality. In the latter, it becomes, of course, the enemy of the party against whom it declares itself, and the ally of the other; and as the positive law of nations makes no distinction, in this respect, between a just and an unjust war, the intervening State becomes entitled to all the rights of war against the opposite party. (a) 15

(a) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 9, § 3. Rutherforth's Inst. b. ii. c. 10, §§ 12, 13. Heffter, Das europäische Völkerrecht, § 24.

(b) Grotius, lib. ii. cap. 9, § 8. Rutherforth, b. ii. c. 10, § 14. Puffendorf, de Jur. Nat. et Gent. lib. viii. cap. 12, §§ 1-3.

► (a) Vattel, Droit des Gens, liv. ii. ch. 4, § 56. Martens, Précis du Droit des Gens, liv. iii. ch. 2, §§ 79-82.

[15 Recognition of Belligerency.—The occasion for the accordance of belligerent rights arises when a civil conflict exists within a foreign State. The reason which requires and can alone justify this step by the government, of another country, is, that its own rights and interests are so far affected as to require a definition of its own relations to the parties. Where a parent government is seeking to subdue an insurrection by municipal force, and the insurgents claim a political nationality and belligerent rights which the parent government does not concede, a recognition by a foreign State of full belligerent rights, if not justified by necessity, is a gratuitous demonstration of moral support to the rebellion, and of censure upon the parent government. But the situation of a foreign State with reference 34

Parties to civil war

If the foreign State professes neutrality, it is bound to allow impartially to both belligerent parties the free exer- entitled to cise of those rights which war gives to public enemies rights of against each other; such as the right of blockade, and of each other.

war against

to the contest, and the condition of affairs between the contending parties, may be such as to justify this act. It is important, therefore, to determine what state of affairs, and what relations of the foreign State, justify the recognition.

It is certain that the state of things between the parent State and insurgents must amount in fact to a war, in the sense of international law; that is, powers and rights of war must be in actual exercise: otherwise the recognition is falsified, for the recognition is of a fact. The tests to determine the question are various, and far more decisive where there is maritime war and commercial relations with foreigners. Among the tests, are the existence of a de facto political organization of the insurgents, sufficient in character, population and resources, to constitute it, if left to itself, a State among the nations, reasonably capable of discharging the duties of a State; the actual employment of military forces on each side, acting in accordance with the rules and customs of war, such as the use of flags of truce, cartels, exchange of prisoners, and the treatment of captured insurgents by the parent State as prisoners of war; and, at sea, employment by the insurgents of commissioned cruisers, and the exercise by the parent government of the rights of blockade of insurgent ports against neutral commerce, and of stopping and searching neutral vessels at sea. If all these elements exist, the condition of things is undoubtedly war; and it may be war, before they are all ripened into activity.

As to the relation of the foreign State to the contest, if it is solely on land, and the foreign State is not contiguous, it is difficult to imagine a call for the recognition. If, for instance, the United States should formally recognize belligerent rights in an insurgent community at the centre of Europe, with no seaports, it would require a hardly supposable necessity to make it else than a mere demonstration of moral support. But a case may arise where a foreign State must decide whether to hold the parent State responsible for acts done by the insurgents, or to deal with the insurgents as a de facto government. (Mr. Canning to Lord Granville on the Greek War, June 22, 1826.) If the foreign State recognizes belligerency in the insurgents, it releases the parent State from responsibility for whatever may be done by the insurgents, or not done by the parent State where the insurgent power extends. (Mr. Adams to Mr. Seward, June 11, 1861, Dip. Corr. 105.) In a contest wholly upon land, a contiguous State may be obliged to make the decision whether or not to regard it as war; but, in practice, this has not been done by a general and prospective declaration, but by actual treatment of cases as they arise. Where the insurgents and the parent State are maritime, and the foreign nation has extensive commercial relations and trade at the ports of both, and the foreign nation and either or both of the contending parties have considerable naval force, and the domestic contest must extend itself over the sea, then the relations of the foreign State to this contest are far different. In such a state of things, the liability to political complications, and the questions of right and duty to be decided at once, usually away from home, by private citizens or naval officers, seem to require an authoritative and general decision as to the status of the three parties involved. If the contest is a war, all foreign citizens and officers, whether executive or judicial, are to follow one line of conduct. If it is not a war, they are to follow a totally different line. If it is a war, the commissioned cruisers of both sides may stop, search,

capturing contraband and enemy's property. (b) But the exercise of those rights, on the part of the revolting colony or province against the metropolitan country, may be modified by the obligation of treaties previously existing between that country and foreign States. (c)

and capture the foreign merchant-vessel; and that vessel must make no resistance, and must submit to adjudication by a prize court. If it is not a war, the cruisers of neither party can stop or search the foreign merchant-vessel; and that vessel may resist all attempts in that direction, and the ships of war of the foreign State may attack and capture any cruiser persisting in the attempt. If it is war, foreign nations must await the adjudication of prize tribunals. If it is not war, no such tribunal can be opened. If it is a war, the parent State may institute a blockade jure gentium of the insurgent ports, which foreigners must respect; but, if it is not a war, foreign nations, having large commercial intercourse with the country, will not respect a closing of insurgent ports by paper decrees only. If it is a war, the insurgent cruisers are to be treated by foreign citizens and officials, at sea and in port, as lawful belligerents. If it is not a war, those cruisers are pirates, and may be treated as such. If it is a war, the rules and risks respecting carrying contraband, or despatches, or military persons come into play. If it is not a war, they do not. Within foreign jurisdiction, if it is a war, acts of the insurgents, in the way of preparation and equipments for hostility, may be breaches of neutrality laws; while, if it is not a war, they do not come into that category, but into the category of piracy, or of crimes by municipal law.

Now, all private citizens of a foreign State, and all its executive officers and judicial magistrates, look to the political department of their government to prescribe the rule of their conduct, in all their possible relations with the parties to the contest. This rule is prescribed in the best and most intelligible manner for all possible contingencies by the simple declaration, that the contest is, or is not, to be treated as war. If the state of things requires the decision, it must be made by the political department of the government. It is not fit that cases should be left to be decided as they may arise, by private citizens, or naval or judicial officers, at home or abroad, by sea or land. It is, therefore, the custom of nations for the political department of a foreign State to make the decision. It owes it to its own citizens, to the contending parties, and to the peace of the world, to make that decision seasonably. If it issues a formal declaration of belligerent rights prematurely, or in a contest with which it has no complexity, it is a gratuitous and unfriendly act. If the parent government complains of it, the complaint must be upon one of these grounds. To decide whether the recognition was uncalled-for and premature, requires something more than a consideration of proximate facts, and the overt and formal acts of the contending parties. The foreign State is bound and entitled to consider the preceding history of the parties; the magnitude and completeness of the political and military organization and preparations on each side; the probable extent of the conflict, by sea and land; the probable extent and rapidity of its development; and, above all, the probability that its own merchant-vessels, naval officers, and consuls may be precipitated into sudden and difficult complications abroad. The best that can be said is, that the foreign State may protect itself by a seasonable decision, either upon a test case that arises, or by a general prospective (b) Wheaton's Rep. iii. 610, United States v. Palmer;-Ib. iv. 63, The Divina Pastora; - Ib. 502, The Nuestra Signora de la Caridad.

(c) See Part IV. ch. 3, § 3, Rights of War as to Neutrals.

36

Identity

how affected

violence.

§ 24. If, on the other hand, the change be effected by external violence, as by conquest confirmed by treaties of of a State, peace, its effects upon the being of the State are to be de- by external termined by the stipulations of those treaties. The conquered and ceded country may be a portion only, or the whole of decision; while, on the other hand, if it makes the recognition prematurely, it is liable to the suspicion of an unfriendly purpose to the parent State. The recognition of belligerent rights is not solely to the advantage of the insurgents. They gain the great advantage of a recognized status, and the opportunity to employ commissioned cruisers at sea, and to exert all the powers known to maritime warfare, with the sanction of foreign nations. They can obtain abroad loans, military and naval materials, and enlist men, as against every thing but neutrality laws; their flag and commissions are acknowledged, their revenue laws are respected, and they acquire a quasi political recognition. On the other hand, the parent government is relieved from responsibility for acts done in the insurgent territory; its blockade of its own ports is respected; and it acquires a right to exert, against neutral commerce, all the powers of a party to a maritime war.

This subject received a full discussion in the correspondence between Mr. Adams and Earl Russell, beginning April 7, and ending Sept. 18, 1865. The principal contest was, whether the recognition by Great Britain of belligerent rights in the rebel States was "unprecedented and precipitate," as alleged by Mr. Adams. This belongs rather to history than to law; but the principles of international law applicable to the facts were adduced on each side. The rule Mr. Adams lays down is this: "Whenever an insurrection against the established government of a country takes place, the duty of governments, under obligations to maintain peace and friendship with it, appears to be, at first, to abstain carefully from any step that may have the smallest influence in affecting the result. Whenever facts occur of which it is necessary to take notice, either because they involve a necessity of protecting personal interests at home, or avoiding an implication in the struggle, then it appears to be just and right to provide for the emergency by specific measures, precisely to the extent that may be required, but no farther. It is, then, facts alone, and not appearances or presumptions, that justify action. But even these are not to be dealt with farther than the occasion demands: a rigid neutrality in whatever may be done is of course understood. If, after the lapse of a reasonable period, there be little prospect of a termination of the struggle, especially if this be carried on upon the ocean, a recognition of the parties as belligerents appears to be justifiable; and at that time, so far as I can ascertain, such a step has never in fact been objected to." He contends that the recognition of belligerent rights in the American colonies, in their war of independence, by France and Holland, was not made generally and for all purposes, but only to meet existing facts, and not until the presence of American war-vessels in their ports made a decision necessary; and that France and England alike seemed to consider that a recognition of belligerency was an unfriendly act, unless justified by necessity. He considers the belligerent rights of the South American provinces to have been recognized upon the same principles, and refers to late civil wars in Europe, involving States more or less maritime, where no such recognition had been made. He contends that the recognition in this instance created all the naval power the rebellion possessed, and was so influential upon its subsequent history that Great Britain and France are not entitled to the argument, that the event justified their action. Earl Russell does not seem to differ from Mr. Adams