has already been remarked, the sovereignty of a State, as considered in international law, is not determined by the character of its origin, the extent of its power or domain, or by the nature of its internal government, but by its relations to others and its capacity to deliberate and act for itself.1 $ 19. A State, as to the individual members of which it is composed, is a fluctuating body, being kept up by a constant succession of new members; so, also, its form of government and municipal constitution may be subjected to frequent alterations and changes; but these fluctuations and changes in the constituent parts of the body politic, and in their relations to each other, do not affect the character of the body itself, in its external relations to other communities,that is, in international law. The State itself remains the same political body, until its identity is destroyed by interruption in its existence as a separate and distinct society; and it neither loses any of its rights, nor is discharged from any of its obligations, by any mere municipal change or internal revolution.2 § 20. Vattel has laid down the rule, that when a country is divided by a civil war, each faction is to be deemed an independent State, and that a foreign power may assist those whose cause it deems to be just. This doctrine of Vattel is probably founded upon a misconstruction of a passage of Grotius; it is not reconcilable with reason or precedents, but is opposed to what Vattel himself has said with respect to the interference of one State in the internal affairs of another. If a foreign State may take part in the civil wars of its neigh 1 Phillimore, On Int. Law, vol. i. § 264; Kluber, Droit des Gens, pt. iii. ch. i. § 23; Heffter, Droit International, §§ 23, 24. 2 Rutherforth, Institutes, b. ii. ch. x. §§ 12, 13, 14; Bello, Derecho Internacional, pt. i. cap. i. § 8; Merlin, Répertoire, verb. 'souveraineté.' 3 As an example of this, he quotes the interference of the Prince of Orange, and the assistance granted by him to the English against James II. To this may be added the assistance of Great Britain on behalf of the Netherlands and against Spain; and also the assistance given by France in the war of Revolution to the United States, not merely by recognition, but by a secret treaty offensive and defensive, and this while at peace with Great Britain. See Parl. Deb., 1819, vol. xl. 1256; Canning's Speeches, vol. v. p. 322. But in 1866 the United States refused to recognise the de facto government of the Emperor Maximilian of Mexico, or the blockade of Matamoras, which his government had declared, notwithstanding that the Government had been formally recognised by England, France, and Spain. Ann. Reg., 1866; Ibid. 1867. bours, there would be no limit to its right to interfere in their domestic affairs. His principle, that the parties to a civil war are independent of all foreign authority, and that no foreign power has any right to judge of their acts toward each other, is correct. Both parties may be entitled to the rights of war toward each other, and consequently to the rights of belligerents with respect to foreign States as neutrals in the contest, such as the rights of blockades, of sieges, &c. But beyond those rights, which are necessarily incidental to a state of war, a foreign power cannot, during the war, regard the two factions as independent States, and give assistance to the one whose cause it may deem to be just! Such conduct would be a direct violation of the rights of sovereignty and independence. But even supposing that the two parties, from the very commencement of a civil war or a revolution, are to be treated in every respect as independent States, it by no means follows that a foreign power may render assistance to the one whose cause it may deem to be just. This would be constituting such foreign power a judge of the justice of the war; whereas, if both parties are to be considered as independent States, the war is to be deemed, in international law, as just on both sides! Moreover, would the justice or injustice of the war be in itself a sufficient reason for the interference of a foreign power? Certainly not. The above-mentioned rule of Vattel has been copied by Wheaton without comment, and apparently without questioning its correctness. But, notwithstanding this implied endorsement of so high an authority, we have no hesitation in pronouncing the doctrine as not only erroneous, but exceedingly dangerous, from the fact that it justifies the most objectionable species of intervention in the internal affairs of States. But the language of Wheaton is more limited and cautious than that of Vattel; and when he says that other States may espouse the cause of the party which they believe to have justice on its side,' and that by so doing a State becomes the enemy of the party against whom it declares itself, and the ally of the other,' he probably means merely to express the legal results of such a declaration, and not to say that the justice or injustice of the cause would in itself justify such declaration, or authorise such interference. In this view, his language is reconcilable with other parts of his work.! 8 21. Whilst the civil war continues, or while a revolted colony or province is shaking off the bonds of its former government, a foreign State should either remain a passive spectator, or, if its own relations require diplomatic intercourse with the revolted society, it should treat such revolted society as a de facto government only, in its foreign relations, and not as an independent State, with respect to its relations with its own sovereign, or its own metropolitan government. But when the contest is virtually determined, and the revolted province or colony has virtually established its independence, foreign powers, without any just offence to the metropolitan country, may recognise that independence and enter into full diplomatic and commercial relations with the new State as a separate and distinct sovereignty. It is not necessary in such cases to await the acknowledgement of that independence by the former sovereign; of the fact of such independence, each State may judge for itself. The absence of all jurisdiction,' says Wildman, to determine the right, leads to the necessary consequence, that, when in the result of a civil war, a state changes its government, or a province, or colony, that before had no separate existence, is in the possession of the rights of sovereignty; the possession of sovereignty de facto is taken to be possession de jure ; and any foreign power is at liberty to recognise such sovereignty by treating with the possessor of it as an independent State. Where sovereignty is necessary to the validity of an 1 Vattel, Droit des Gens, liv. ii. ch. vi. § 56; Grotius, De Jur. Bel. ac Pac, lib. ii. cap. xviii. §2; Wheaton, Elem. Int. Law, pt. i. ch. ii. § 7 ; Kent, Com, on Am, Law, vol, ì, pp. 24, 25. President Lincoln immediately after his accession to power, in 1861, found himself face to face with a most formidable insurrection. In April, 1861, he ordered a levy of 75,000 men to meet the danger. Finding this number insufficient, armies of 300,000, 400,000, and even 700,000 men were raised, exhausted, and replenished in this mighty contest. A blockade of the coasts of nine States was proclaimed, and a navy was suddenly created, supposed to be adequate to the task of blockading 3,000 miles of coast. In 1802 Lord Shelburne declared in the House of Lords that it had always been the practice of the English Government to recognise a de facto Government which has succeeded in establishing itself on the consent of a whole people,' and that the Southern Confederacy had not then been so successful as to justify the British Government in recognising them as a Power which had proved its ability to maintain its own inde act, no distinction is or ought to be made between sovereignties founded on a good or bad title. Few governments have been founded on free suffrage and election; most have origi pendence. But in course of time Great Britain could not any more than the other Powers of Europe fail to recognise in the vast extent of the territories involved in hostilities, and in the fierce nature of the contest, a civil war of the most extraordinary character. It was admitted by the United States that 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 be required, but no further. It is then facts alone, and not appearances or presumptions that justify action. But even these are not to be dealt with further than the occasion demands; a rigid neutrality in whatever may be done is of course understood. If, after the lapse of a considerable period, there be little prospect of the termination of a struggle, especially if this be carried on upon the ocean, a recognition of the parties as belligerents appears to be justifiable. Eventually, in proclaiming that both parties in the vast civil war were to be treated as belligerents, and in admitting the validity of a blockade of 3,000 miles of coast, Great Britain acknowledged an existing fact, and recognised the international law applicable to that fact. She, moreover, directed prosecutions against those persons who were engaged in enlisting seamen or recruits in the service of either belligerent. But she refused the invitation of the Federal Government of the United States, in 1865, to allow it the belligerent rights of blockade and of search and detention to the widest extent, and to refuse them altogether to the other party in the civil war, who had possession of an extensive territory, who had all the forms of a regular Government, framed on the model of the United States, and who were wielding large regular armies, for such, in the opinion of the British Government, have been as contrary to the practice of civilised nations as it would have been to the rules of justice and of international law. Further, Great Britain decided not to refuse an asylum to persons landing on her shores and conforming to her laws, merely because they might be in hostility with a Government or nation with whom Great Britain was at peace. On the cessation of the Civil War, Great Britain further insisted, notwithstanding the opposition of the United States Government, that any Confederate vessel of war called upon to depart from any British port, should have the twenty-four hours' rule conceded to it, and that vessels which were lying in British waters, or which during the space of a month after should come into such waters, should be permitted to disarm and assume a peaceful character. But they were entitled to no other protection, except to so much as might be administered by law in time of peace, and the twenty-four hours' rule did not apply to their case. The United States Government were entitled to maintain that they were forfeited, and to demand their delivery in a British Court. See Parl. Papers, 1863–65. The following opinion of Judge Daly addressed to the Hon. Ira Harris, written at New York, December 21, 1861, is in favour of according to the private ships of war of a de facto, although in the eyes of the United nated in violence and faction. In international transactions possession is sufficient. Otherwise it would be necessary to inquire into the origin of sovereignties, and to ascertain States not a de jure, State, the privileges of privateers instead of treating them as pirates. He says: 'In compliance with your request at our conversation in Washington, I will put in writing the reasons why the southern privateersmen should be regarded as prisoners of war, and not as pirates. 'Privateering is a lawful mode of warfare, except among those nations who by treaty stipulate that they will not as between themselves resort to it. Pirates are the general enemies of all mankind, hostes humani generis; but privateersmen act under and are subject to the authority of the nation or power by whom they are commissioned. They enter into certain securities that they will respect the rights of neutrals; their vessel is liable to seizure and condemnation if they act illegally, and they wage war only against the power with which the authority that commissioned them is at war. A privateer does no more than is done by a man of war, namely, seize the vessel of the enemy, the prize or booty being distributed as a reward among the captors. The only difference between them is that the vessel of war is the property of the Government, manned and maintained by it, while the other is a private enterprise undertaken for the same general purpose, and giving guarantees that it will be conducted according to the established usages of war. In short, one is a public, the other a private vessel of war, neither of which acquires any right to a prize taken until the lawfulness of the capture is declared, by a competent court, under whose direction the thing taken can be condemned and sold, and the proceeds distributed in such proportions as the court considers equitable. The Government of the United States declined to become a party to the International Treaty of Paris of 1856, and therefore the whole people of the United States, as well those who are maintaining the Government as those who are in rebellion against it, have never agreed to dispense with privateering. It is not our interest to do so. We are a maritime people with a large extent of sea coast, which, while it leaves us greatly exposed to attacks by sea, at the same time affords facilities that render privateering to us one of our most effective arms in warfare. This was the case in our contest with England in 1812; and, should a war now grow out of the affair of the "Trent," privateering would be indispensable to enable us to cope with so formidable a power as that of Great Britain. 'A great deal has been written against this mode of warfare, but nations, like individuals, act upon the instinct of self-preservation, and avail themselves of the natural defences which grow out of their situation; and a system, therefore, which enables us to keep a small navy in peace and improvise a large one in war will never be relinquished because nations who have everything to lose, or little to gain by its continuance, desire that it should be abolished. Being, then, a legitimate mode of making war, what is the difference between the Southern soldier who takes up arms against the Government of the United States upon land and the Southern privateersman who does the same upon the water? Practically there is none; and if one should be held and exchanged as a prisoner of war, the other is equally entitled to the privilege. The court before which the crew of the "Jefferson Davis" were convicted as pirates held that they could not be regarded as privateers, upon the ground that they were not acting under the authority of an independent State, with the recognised rights of sovereignty. This objection applies equally to |