the matter of fact while he waits for the solution of a legal problem at home. Besides, if he resists the authority of the party in possession ou the ground that another has the right of possession, he departs from his neutrality, and so violates the duty he owes to both the belligerents, as well as to the laws of his own country." Mr. Cass, Sec. of State, to Mr. Clay, Nov. 26, 1858. MSS. Inst., Peru. In the Br. and For. St. Pap. for 1859-'60, 1126, vol. 50, will be found the correspondence of the United States with Peru, relative to the recognition by the United States of the existence of civil war between Vivanco and Castillo. See also same work for 1860-'61, vol. 51. In an article entitled "A famous diplomatic dispatch," in the North American Review for April, 1886, Mr. Rice gives an account of the instruction of May 21, 1861, sent by Mr. Seward to Mr. Adams, United States minister at London, in relation to the recognition by Great Britain of the belligerency of the Southern Confederacy. Mr. Lincoln's interlineations and corrections in Mr. Seward's draft, a fac-similie of which accompanies the article, show with what care he avoided all unneces sary disclosures of policy, and all remarks which might give unnecessary offense or provoke hostility. As to protests against recognition by Great Britain and France of belligerency of Confederate States, see Mr. Seward, Sec. of State, to Mr. Dayton, May 30, 1861. MSS. Inst., France. See also same to same, June 17, July 6, Oct. 30, 1861; Apr. 15, 1862; Mr. Seward to Mr. Adams, Aug. 10, 1865. MSS. Inst., Gr. Brit. The recognition by Great Britain of Southern belligerency is discussed by Goldwin Smith in 13 Macmillan's Mag., 169. "Mr. Adams, minister in London, in adverting, June 14, 1861, to the concession of belligerent rights to the Confederates, remarks: 'At any rate there was one compensation, the act had released the Government of the United States from responsibility for any misdeeds of the rebels towards Great Britain. If any of their people should capture or maltreat a British vessel on the ocean, the reclamation must be made only on those who had authorized the wrong. The United States would not be liable. Papers relating to Foreign Affairs, &c., p. 89." Lawrence's Wheaton (ed. 1863), 44. See on this point infra rulings in this section, and also §§ 223 ff. "Your dispatch of April 9, No. 297, has been submitted to the President. "You have rightly interpreted to Mr. Drouyn de l'Huys our views concerning the issue of letters of marque. The unrestrained issue of piratical vessels from Europe to destroy our commerce, break our blockade of insurrectionary ports, and invade our loyal coast would practically be an European war against the United States none the less real or dangerous for wanting the sanction of a formal declaration. Congress has committed to the President, as a weapon of national defense, the authority to issue letters of marque. We know that it is a weapon that cannot be handled without great danger of annoyance to the neutrals and friendly commercial powers. But even that hazard must be incurred rather than quietly submit to the apprehended greater evil. There are now, as you must have observed, indications that that appre hended greater evil may be averted through the exercise of a restraining power over the enemies of the United States in Great Britain. Hopeful of such a result, we forbear from the issue of letters of marque, and are content to have the weapon ready for use if it shall become abso lutely necessary. (See infra, § 385.) "It gives me great pleasure to acknowledge that, beyond what we deem the original error of France in recognizing, unnecessarily, as we think, the insurgents as a belligerent, we have every reason to appre ciate the just and impartial observance of neutrality which has been practiced in the ports and harbors of France by the Government of the Emperor. In any case it will be hereafter, as it has been hitherto, a pleasug duty to conduct all our belligerent proceedings so as to inflict no wrong or injury upon the Government or the people of the French Empire. "You have also done the country a good service in explaining, in your conversations with Mr. Drouyn de l'Huys, the manner in which we have heretofore maintained our neutrality in foreign wars, by enforc ing our enlistment laws, which are in all respects the same as those of Great Britain. "The President has received with much interest Mr. Drouyn de Huys's exposition of the policy of the French Government in regard to the insurrection in Poland. The Emperor of Russia seems to us to have adopted a policy of beneficent reform in domestic administration. His known sagacity and his good dispositions encourage a hope that Poland will not be denied a just share of the imperial consideration if, as seems now to be generally expected in Europe, the revolution attempted by her heroic people shall be suppressed. "I do not care to speak often upon the war of France against Mexico. The President confidingly believes that the Emperor has no purpose of assuming, in the event of success, the Government of that Republic. Difficult as the exercise of self-government there has proved to be, it is, nevertheless, quite certain that the attempt to maintain foreign authority there would encounter insurmountable embarrassment. The country possesses immense, practically inexhaustible, resources. They invite foreign labor and capital from all foreign countries to become naturalized and incorporated with the resources of the country and of the continent, while all attempts to acquire them by force must meet with the most annoying and injurious hindrance and resistance. This is equally true of Mexico and of every portion of the American continent. It is more than a hundred years since any foreign state has successfully planted a new colony in America, or even strengthened its hold upon any one previously existing here. Through all the social disturb ances which attend a change from the colonial state to independence, and the substitution of the democratic for the monarchical system of government, it still seems to us that the Spanish-American states are steadily advancing towards the establishment of permanent institutions of self-government. It is the interest of the United States to favor this progress, and to commend it to the patronage of other nations. It is equally the interest of all other nations, if, as we confidently believe, this progress offers to mankind the speediest and surest means of rendering available to them the natural treasures of America." Mr. Seward, Sec. of State, to Mr. Dayton, Apr. 24, 1863. MSS. Inst., France. "This Government insists now in these cases, as it insisted in the beginning of our domestic strife, that the decisions of the Emperor's Government, like those of other maritime powers, by which the insurgents of this country, without a port or a ship or a court of admiralty, are recognized by France as a naval belligerent, are in derogation of the law of nations and injurious to the dignity and sovereignty of the United States, that they have never approved or acquiesced in those decrees, and that they regard these late proceedings in relation to the Florida and Georgia, like those of a similar character which have occurred in previous cases, as just subjects of complaint. The same views are entertained so far as they apply to the new maritime regulations. We claim that we are entitled to have our national vessels received in French ports with the same courtesy that we ourselves extend to French ships of war, and that all real or pretended insurgent vessels ought to be altogether excluded from French ports. We expect the time to come, and we believe it is not distant, when this claim will be acknowledged by France to be both reasonable and just." Mr. Seward, Sec. of State, to Mr. Dayton, Mar. 21, 1864. MSS. Inst., France. "The President does not deny, on the contrary he maintains, that every sovereign power decides for itself, on its responsibility, the question whether or not it will, at a given time, accord the status of belligerency to the insurgent subjects of another power, as also the larger question of the independence of such subjects and their accession to the family of sovereign states. "But the rightfulness of such an act depends on the occasion and the circumstances, and it is an act, like the sovereign act of war, which the morality of the public law and practice requires should be deliberate, seasonable, and just, in reference to surrounding facts; national belligerency, indeed, like national independence, being but an existing S. Mis. 162-VOL. I-33 513 fact, officially recognized as such, without which such a declaration is only the indirect manifestation of a particular line of policy." Mr. Fish, Sec. of State, to Mr. Motley, Sept. 25, 1869. MSS. Inst., Gr. Brit. "But circumstances might arise to call for it. A ship of the insurgents might appear in the port of the neutral, or a collision might occur at sea, imposing on the neutral the necessity to act. Or actual hostility might have continued to rage in the theater of insurgent war, combat after combat might have been fought for such a period of time, a mass of men may have engaged in actual war until they should have acquired the consistency of military power, to repeat the idea of Mr. Canning, so as evidently to constitute the fact of belligerency, and to justify the recognition by the neutral. Or the nearness of the seat of hostilities to the neutral may compel the latter to act; it might be his sovereign duty to act, however inconvenient such action should be to the legitimate Government." Mr. Fish, Sec. of State, to Mr. Motley, Sept. 25, 1869. MSS. Inst., Gr. Brit. "The question of according or withholding rights of belligerency must be judged, in every case, in view of the particular attending facts. * This conflict must be one which will be recognized in the sense of international law as war. Belligerency, too, is a fact. The mere existence of contending armed bodies, and their occasional conflicts, do not constitute war in the sense referred to." President Grant, Seventh Annual Message, 1875. Prior to the acknowledgment by the United States of the independ ence of the southern Spanish-American colonies, informal agents were sent to them by the President (see supra, § 47); but diplomatic agents from several of these states were refused at the same time official diplomatic recognition at Washington, though personally received. See Abdy's Kent, 135; Dana's Wheaton, note 121. Mr. Seward (Ex. Doc. 20, 39th Cong., cited in Dana's Wheaton, note 41; Mr. Seward to Mr. Bigelow, Mar. 13, 1865, Dip. Corr., 1865, pt. 3, 378) took the ground that the United States Government would decline to hold intercourse, official or unofficial, with agents from insurgents against Governments with whom the United States were at peace. But when a belligerent is recognized as such, this implies an intercourse, at least between agents, in reference to terms of belligerency. This intercourse may be very informal, aud, when between belligerents who are parties to a civil war, may for a time be limited to negotiations for exchange of prisoners and for cognate objects. But, as in the case of the late civil war in the United States, the sovereign against whom the insurrection is directed, will, from the necessity of the case, hear informally and unofficially agents from belligerent insurgents as to terms of surrender. As to reception, informally, by Mr. Seward of agents of the unrecognized Gov- Admitting a sovereign, who is endeavoring to reduce his revolted subjects to obedience, to possess both sovereign and belligerent rights, and to be capable of acting in either character, the manner in which he acts must determine the character of the act; i. e., whether it is an exercise of belligerent rights or exclusively of his sovereign power. Rose v. Himely, 4 Cranch, 241. "A civil war," said Judge Grier, giving the opinion of the Supreme Court in the Prize Cases, 2 Black, 667, "is never solemnly declared; it becomes such by its accidents-the number, power, and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory; have declared their independence; have cast off their allegiance; have organized armies; have commenced hostilities against their former sovereign, the world acknowledges them as belligerents and the contest a war." "To the Confederate Government was conceded, in the interest of humanity, and to prevent the cruelties of reprisals and retaliation, such belligerent rights as belonged, under the law of nations, to the armies of independent Governments engaged in war against each other. The Confederate States were belligerents in the sense attached to that word by the law of nations." Harlan, J., Ford v. Surget, 97 U. S., 594. As to recognition by the United States of the belligerency of foreign insurgents, "There may be a difficulty in ascertaining when the fact of war begins, and this difficulty is the greater in cases of insurrection or revolt, where many of the antecedents and premonitory tokens of war are wanting, where an insurrection may be of little account and easily suppressed, and where war bursts out full-blown, it may be, at once. Our Government has more than once professed to govern its action by the following criteria expressed in Mr. Monroe's words relating to the Spanish South American revolts: 'As soon as the movement assumes such a steady and consistent form as to make the success of the prov inces probable, the rights to which they were entitled by the law of nations, as equal parties to a civil war, have been extended to them.' But this rule breaks down in several places. The probability is a creature of the mind, something merely subjective, and ought not to enter into a definition of what a nation ought to do. Again, the success does not depend on steadiness and consistency of form only, but on relative strength of the parties. If you make probability of success the criterion of right in the case, you have to weigh other circumstances before being able to judge which is most probable, success or defeat. Would you, if you conceded belligerent rights, withdraw the concession whenever success ceased to be probable? And, still further, such prov. inces in revolt are not entitled by the law of nations to rights as equal parties to a civil war. They have properly no rights, and the conces sion of belligerency is not made on their account, but on account of con |