government still possessed full jurisdiction and control over its bays, harbors, and waters, as before the existence of the insurrection, without requiring any actual blockade of the ports in order to enforce the prohibition. It may be quite consistent with such a position for the foreign government to claim that all vessels belonging to its subjects, which should enter the ports without notice of the prohibition, should be permitted to dispose of their cargoes and depart with such clearance as could be obtained there, in the same manner as if the prohibition had not existed; because, acting in good faith toward the government, as if the insurrection did not exist, and leaving that government to contend with it without any interference or recognition of the authority or political existence of the insurgents, the foreign nation might well claim that its subjects should not suffer loss, or be prejudiced, without warning.

A foreign nation occupying such a position comes under no obligation, and owes no duty, to the insurgent power. It may carry on its commerce with the government assailed without any liability, under the law of nations, to search and seizure for contraband goods. It may avail itself of any implied recognition of the insurgents by the government assailed, as by the institution of a blockade, and insist that its subjects have a right to hold commercial intercourse with the insurrectionary power as a belligerent, so far as they may consistently with the blockade. It will naturally refuse to permit its vessels to be overhauled and detained by vessels commissioned by the insurgents as privateers, and may well treat such interference as piratical; although it will be at its pleasure, and consistent with its position, to permit such visitation as may serve to ascertain the nationality of its vessels, without any search for enemies' property, or articles contraband of war.

Such a position would by no means require the foreign nation, which ignored the insurgent force as an existing power, to treat the privateers commissioned by the insurrectionary government as pirates. It is true, that the British govern

ment, in the case of Greece, in 1825, alleged that "a power or a community which was at war with another, and which covered the sea with its cruisers, must either be acknowledged as a belligerent, or dealt with as a pirate." But the necessity is certainly not apparent, in respect to any nation whose vessels are not interfered with by such cruisers. With the exception of nations whose commerce is assailed, it is not necessarily an objection to a privateer that she holds a commission from an unrecognized power. Piracy, it is evident, may be of a general, or of a limited character. The slave-trade is piracy under the laws of Great Britain and of the United States. But this does not constitute it piracy as to other nations. And the same may be true of that description of piracy which consists in robbing merchant-vessels on the high seas. The fact, that those who act as privateers under commissions from the Confederate States are pirates by the express provision of the act of Congress before cited, as regards the United States, against whose vessels they direct their warfare, does not constitute them pirates as respects other nations. And the result would be the same, if, by the rules of public law, also, the United States might hold them to be pirates. France, before her recognition of the independence of the United American Colonies, did not treat their privateers as pirates; and the government of the United States has in several instances acted on the principle that privateers of insurgents not acknowledged were not pirates as to the United States, and were not subject to capture as such. But if a vessel commissioned as a privateer by an unrecognized belligerent rob a vessel of a neutral nation, may not any nation treat the act as piracy? †

*

2. Any foreign nation, whenever the circumstances are such as to warrant it, may acknowledge, for itself, the independence

* 3 Wheaton's Reports, 610, United States vs. Palmer; 7 Wheaton's Rep. 283, The Santissima Trinidad; Case of Captain P. P. Voorhies, before a naval courtmartial, in 1844.

† 1 Phillimore's Int. Law, 398 - 406.

of an insurgent organization, recognizing it as having a national existence, and treating it as a nation; in which case it may form an alliance with the insurgent government, offensive and defensive, and thus become a party to the war; or it may, with such acknowledgment, assume a position of neutrality, claiming the rights of a neutral, as between what would then, to the party recognizing the independence of the insurgents, be two equally independent belligerent nations. Such acknowledgment of the independence of an insurgent party, before its independence is recognized by the government which it assails, may or may not furnish just cause of war on the part of that government, according to the circumstances under which it is made. If the acknowledgment follows very soon upon the breaking out of the insurrection, and while the government is pursuing active and energetic measures to suppress it, the aid and encouragement thereby given to the rebels would furnish just cause of offence to the existing government. On the other hand, after the contest has been of long continuance, and the independence of the insurrectionary party has been practically maintained for such a period as to show its capacity to uphold it, then the interests of other nations may well justify them in an acknowledgment of what has been accomplished, in a recognition of an existing fact, without just cause of offence to the government which has been resisted, and which has failed to overcome that resistance. The commercial interests of nations having no interest in the contest may require that they should make the recognition, for the purpose of trade, or for other desirable ends; and the existing government cannot complain of the mere acknowledgment of an actual fact. But such recognition should follow only a practical independence. Such was the case with the acknowledgment of the independence of the South American republics by the United States in 1823, the latter assuming to act as a neutral nation.

The insurgent party, upon such acknowledgment, may

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 intercourse 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.