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claim the right to send an ambassador or minister to the nation making it, and may expect in due course of time to receive one, and to have their intercourse regulated by treaty. After such an acknowledgment, if the nation making it does not become a party to the war, – either by a treaty of alliance with the party thus recognized, or by a declaration of war by the government assailed, on account of the recognition, — the nation making the acknowledgment is entitled to claim the rights of a neutral with respect to each of the belligerent parties, treating each as a nation, and forming treaties with the insurgent party, as if it were a nation, equally with its adversary; and it may send and receive ambassadors, and trade to and from any ports occupied and held by the party acknowledged, except so far as it is prevented by the exercise of rights accorded by international law to belligerents against neutrals. The neutral nation has the right to require that its territory shall not be made the theatre of war, nor made use of for the purposes of war, and that hostile enterprises shall not originate in, or be carried on, from it. Its citizens and subjects may be the carriers of the goods of either belligerent, subject to the right of the other belligerent to capture such goods, and to search and detain the neutral vessel for that purpose, but not to confiscate the ship ; and they may maintain free commercial intercourse with each belligerent, subject to the rules which forbid aid to the belligerent in the prosecution of the war, and to the right of the belligerent to prevent such in
tercourse by an efficient blockade.
The duty of the neutral is not to favor one belligerent to the detriment of the other, — not to transport munitions of war, or other goods contraband of war, to either belligerent, — not to carry officers, soldiers, or despatches of either, — to respect any blockade by one belligerent, of the ports of the other, if it is efficient, — and, generally, not to aid either belligerent, in the prosecution of the war, except as the ordinary commercial transactions in goods not contraband incidentally furnish such aid.
The rights of the belligerent as respects the neutral are, to visit and search his merchant-vessels, on the high seas, for the purpose of ascertaining whether enemies' property, or goods contraband of war, or persons whom the neutral may not carry, are on board; to capture the property of the enemy so found;" and for violation of belligerent rights, by aid rendered to the enemy in transporting goods contraband of war, or persons in the service of the enemy in the prosecution of the war, as officers, soldiers, or other functionaries, or the despatches of the enemy, - and also for violation of blockade, — to capture and confiscate the ship and goods.
These are the principal rights and duties of the parties, as set forth, in substance, by accredited writers on international law, subject in some instances to limitations and modifications, to which we shall refer, so far as they appear to be material to the present discussion.
No nation has as yet acknowledged the independence of the Confederate States. Such acknowledgment is not usually made, unless by a nation which is disposed to ally itself with the insurgents in hostility to the government assailed, until the independence of the insurgents has been acknowledged by that government, or until it has been practically achieved.
3. It is competent for any foreign nation, from the time when an insurrectionary force assumes to institute a form of government, and to carry on a war, to recognize the insurgents as a belligerent party.
Considerations of policy, as well as of comity, may well postpone such a recognition until there has been ample time for the government assailed to assert its power for the suppression of the insurrection. But these are matters of which each nation must judge for itself. Great Britain was the first to make such recognition of the Confederate States. France and Spain have since followed the example.
* See Appendix, Note A.
In one sense, this is but the recognition of an existing fact. It seems, however, to carry with it something more than a mere acknowledgment of the fact that there is a state of civil war existing; for that fact may be recognized, spoken of, deplored, and sympathy expressed, as has been done by Russia, without any political consequences attached to such recognition.
The formal recognition of the insurgent party as a belligerent, by another nation, gives the insurgents a political status as to the party making the recognition, and involves consequences to the government which is attempting to suppress the insurrection, as has been already suggested. This recognition appears to be an action intermediate as regards the other two, and to be a convenient mode of dealing with a case of intestine war by a foreign nation which is desirous of being civil to the insurgent party, and of availing itself of all the intercourse which can be established with them, without committing itself to an acknowledgment of an independence which may never be achieved, and without the establishment of diplomatic relations, which might be suddenly terminated, and in a manner not greatly to the credit of the neutral, making the acknowledgment of an independence which was proved to be an abortion by the suppression of the rebellion very soon afterward.
As Great Britain was the first to acknowledge the belligerency of the Confederates, and as this acknowledgment is the only one which has affected the relations of the United States in any considerable degree, we shall pursue the residue of our discussion with a more particular reference to the existing relations between Great Britain and the United States. Her acknowledgment did not give the insurgents a right to send an ambassador to the Court of St. James, nor to claim a treaty of amity and commercial relations. It did not place them, as respects her, in the position of a nation. But, being acquiesced in by the United States, it gave her rights as against them which she could not have had, as a neutral nation, but
for the recognition; and it also operated to give rights to the r
insurgent government as against her, which she would not otherwise have permitted it to enjoy. Great Britain declared that she was cognizant of the fact that a civil war existed in the United States. That is nothing. All the rest of the civilized world knew the same thing. But by adding the recognition, she accorded to them the warlike rights of a belligerent nation; and by her superadded declaration of strict neutrality, she allowed to them, for the general purposes of commercial intercourse and warlike operations, all the rights which she allows to the United States, aside from previous treaty stipulations. She bound herself to respect their “stars and bars ” equally with the flag of the United States. If, in her existing treaty with the United States, , there are any stipulations on her part, the performance of which would conflict with the recognition which she thus made, and the neutrality which she thus assumed, the question might arise, between her and the Confederates, how far she had a right, under the law of nations, to perform those stipulations without a breach of her neutrality. She knew that, at the date of her present treaty with the United States, all the ports in the seceding States, so called, were in the possession of the general government, and that the duties there paid were part of the common funds of the whole United States. She knew that at the time of her recognition those ports were in the possession of the insurgents, who claimed to regulate the commercial intercourse there, and to appropriate the revenues derived therefrom to other uses than to those of the United States. And she knew also how the revenue of the United States would be injuriously affected, by the facilities for smuggling into the Northern States goods introduced through those ports, if a free commerce were carried on there. Yet, by her recognition of the Confederate States as an existing power, she acknowledges those ports to be the ports of the party in possession, and claims the right, as a neutral nation, to enter those ports, and any others which may be opened by
the Confederate States, with her ships and goods, unless the United States government shall enforce its attempts to suppress the insurrection there by an efficient blockade, precisely as she would be authorized to do in the case of two long existing independent nations contending in war, and to which she held the relation of neutrality. The United States are attempting to keep up such a blockade. It is true that the United States were not compelled to resort to the blockade by reason of her recognition. The intention to blockade was proclaimed on the 19th of April, which was before the recognition. But it is also true, we think, that that recognition, which was in May," was in no manner influenced by the implied recognition arising from the blockade. Her recognition of the insurgents as a belligerent party has therefore, to this extent, by her voluntary act, given them the standing of a nation, although there is no acknowledgment of their independence. The blockade itself would not necessarily have done this ; and but for the recognition, it might have been terminated at pleasure, so far as Great Britain was concerned, and any other measure of coercion have been substituted. It has been said, without much consideration, that British ships would have had a right to resort to those ports without
* There has been an attempt to controvert the position in the article on “Habeas Corpus and Martial Law" in our last number, that Mr. Chief Justice Taney ought, in Merryman's case, to have taken notice of the existence of the war. The position itself is of very little importance to the argument, - which was to show that the refusal of General Cadwalader to produce his prisoner was sustained by sound principles; for the Chief Justice very plainly intimated that, if General Cadwalader had himself undertaken to suspend the habeas corpus, (in other words, to deny his liability to bring in his prisoner,) he would not have taken the trouble to argue the question. But it appears that the Lord Chancellor and other legal authorities in England had found out that war existed here some time before Merryman's case came before the Chief Justice, which was on the 28th day of May. And as the information respecting the facts which served to show its existence was not confined exclusively to that country, perhaps, if Mr. Chief Justice Taney had inquired, he might have found it out also.