gave orders that the Confederate flag should not be saluted. But the principle of an impartial neutrality requires that any powers, liberties, or immunities, the refusal of which to one belligerent would place him at a disadvantage in matters relating to the war, should be admitted to belong, for the purposes of the war, to both alike. 2 105. What, then, is the reason of the immunity from local jurisdiction, which is secured by custom to public ships of war, and to what class of privileges does it belong? Is it to be reckoned among honorary privileges, and regarded as affecting only or chiefly the dignity of the Sovereign or State under whose flag the vessel sails? Clearly, this is not so. The reason (which has been frequently explained) is, that this exceptional immunity is necessary, in order to prevent the operations in which, and the objects for which, a military or naval force is employed, from being subject to be defeated or interfered with by the action of a foreign Power. It is essential that the supreme and undivided command of those forces and every part of them should be exercised by the Head or Government of the State, independently of all external control; and this is a right which no State would ever consent to forego. It is manifest that this reason is as strong in the case of a community, under a de facto Government, carrying on war, but not recognized as sovereign, as in that of a recognized sovereign State; and that to refuse this freedom to one of two belligerents and grant it to the other, would place the former at disadvantage in matters relating to the war, and would not be incompatible with impartial neutrality. It would be in effect to grant to the one and refuse to the other access to the ordinary hospitalities of the neutral port; since it is improbable that any belligerent Government would suffer its armed ships to subject themselves, by entering the territorial waters of a foreign sovereign, to any other jurisdiction than its own. Such has been the practice of all civilized nations during revolutionary wars, before an insurgent population has established its title to be recognized as an independent State; such were the principles and the practice of the United States during the wars between Spain and Portugal and their revolted Colonies, before those Colonies had achieved their independence. 106. A passage in Mr. Justice Story's judgment in the case of the Santissima Trinidad sums up in so clear a manner the consequences resulting from the existence of belligerency and neutrality, in a case of civil war, that it may, with much advantage, be here subjoined. The question related to the ship Independencia, which had passed into the war service of the Revolutionary Government of Buenos Ayres, under the circumstances stated in an earlier part of the present Argument.3 "In general," said that eminent judge, "the commission of a public ship, signed by the proper authorities of the nation to which she belongs, is a complete proof of her national character. A bill of sale is not necessary to be produced, nor will the Courts of a foreign country inquire into the means by which the title to the property has been acquired. It would be to exert the right of examining into the validity of the acts of the foreign sovereign, and to sit in judgment upon them, in cases where he has not conceded the jurisdiction, and where it would be inconsistent with its own supremacy. The commission, therefore, of a public ship, when duly authenticated— so far, at least, as foreign Courts are concerned-imports absolute verity, and the title is not examinable. The property must be taken to be duly acquired, and cannot be controverted. This has been the settled practice between nations; and it is a rule founded in public convenience and policy, and cannot be broken in upon without endangering the peace and repose as well of neutral as of belligerent sovereigns. The commission in the present case is not expressed in the most unequivocal terms; but its 1 British Counter Case, p. 121. Appendix to British Case, vol. v, p. 129. fair purport and interpretation must be deemed to apply to a public ship of the Goverument. If we add to this the corroborative testimony of our own and the British Consul at Buenos Ayres, as well as that of private citizens, to the notoriety of her claim to a public character, and her admission into our ports as a public ship, with the immunities and privileges belonging to such ship, with the express approbation of our own Government, it does not seem too much to assert, whatever might be the private suspicion of a lurking American interest, that she must be judicially held to be a public ship of the country whose commission she bears. "There is another objection urged against the admission of this vessel to the privileges and immunities of a public ship which may well be disposed of in connection with the question already considered. It is that Buenos Ayres has not been acknowledged as a sovereign, independent Government by the Executive or Legislature of the United States, and therefore is not entitled to have her ships of war recognized by our courts as national ships. We have in former cases had occasion to express our opinion on this point. The Government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed a determination to remain neutral between the parties, and to allow to each the same rights of asylum and hospitality and intercourse. Each party is therefore deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war, and entitled to be respected in the exercise of those rights. We cannot interfere to the prejudice of either belligerent, without making ourselves a party to the contest and departing from the posture of neutrality. All captures made by each must be considered as having the same validity; and all the immunities which may be claimed by public ships in our ports under the law of nations must be considered as equally the right of each." 107. Some inconvenience may arise (as appears to be suggested in the Counter Case of the United States) from the circumstance that, should any cause of complaint arise, no official representations can be made by the neutral to a Government with which it has no official intercourse. But this inconvenience is liable to occur in every case in which a belligerent cruiser commissioned by such a Government may have done any unlawful or improper act on the high seas, such as an irregular exercise of the right of search or an illegal capture. This has not, however, prevented neutrals from conceding to such cruisers on the high seas the exercise of the rights which belong to ships duly commissioned. Again, inconvenience may arise where citizens or subjects of the neutral, who may be within the territory held and ruled by such a Government, have suffered from any real or apparent abuse of power. Yet it has not been the practice of neutrals in such cases to treat the de facto Government as non-existent, although they may not have recognized it as sovereign. More than once during the war Her Majesty's Government was desirous of addressing unofficial representations to the Government existing in the Confederate States; and it was prevented from doing so only by the refusal of the United States Government to allow such communications to pass through the blockaded ports. But it is clear that this refusal could not impose on neutral powers any obligation to treat Confederate ships or the Confederate Government itself in a manner different from that in which they would otherwise have been entitled to treat them. 108. The British Government will here repeat, as bearing on this part of the subject, two propositions already stated in the commencement of its Case, and which it believes to be incontrovertible: Maritime war being carried on by hostilities on the high seas, and through the instrumentality (ordinarily) of vessels commissioned by public authority, a neutral power is bound to recognize, in matters relating to the war, commissions issued by each belligerent, and captures made by each, to the same extent and under the same conditions as it recognizes commissions issued and captures made by the other. 1Appendix to British Case, vol. iii, p. 86. A portion of the passage given above was cited by Mr. Justice Grier when delivering the judgment of the Supreme Court in the cases of the British ship Hiawatha and three other vessels captured by United States cruisers in the first year of the civil war. See also judgments in the case of the Divina Pastora and Estrella. (Ibid., pp. 80, 81.) Where either belligerent is a community or body of persons not recognized by the neutral power as constituting a sovereign State, commissions issued by such belligerent are recognized as acts emanating, not indeed from a sovereign Government, but from a person or persons exercising de facto, in relation to the war, the powers of a sovereign Government.1 1 British Case, p. 4. The Counter Case of the United States contains the following statement, (sec. 1, par. 1:) "It is assumed in that (the British) Case that the rebels of the United States were, by Her Majesty's Proclamation of May 3, 1861, invested with some undefined political attributes. But the United States have hitherto understood that Her Majesty's Government merely assumed to regard the persons who resisted the power of the United States as a body of insurrectionists who might be recognized as clothed with belligerent rights at the discretion of neutral powers. They therefore think it right to conclude that the frequent use in the British Case of language implying recognized political attributes in the insurrection is an inadvertence." The British Government is at a loss to understand what is intended by this observation, the United States having omitted to specify or indicate the particular expressions to which they refer. But, in order to avoid misconception, Her Majesty's Government will refer to a judgment, pronounced since the conclusion of the war, by the Supreme Court of the United States, in reference to the character and status of the Confederate States and their Government during the war. There are, so far as Her Majesty's Government are aware, no expressions in the British Case which might not be used with strict accuracy and propriety by a foreign Government in reference to a state of affairs which has been thus characterized by the domestic Tribunals of the United States, and by the highest of these, the Supreme Court. The case referred to is Thorington vs. Smith and Hartley, decided in the Supreme Court of the United States, in December, 1868. The Chief Justice delivered the opinion of the Court. "The questions before us upon this appeal are these: 1. Can a contract for the payment of Confederate notes, made during the late rebellion, between parties residing within the so-called Confederate States, be enforced at all in the courts of the United States? "2. Can evidence be received to prove that a promise expressed to be for the payment of dollars, was, in fact, made for the payment of any other than lawful dollars of the United States? "3. Does the evidence in the record establish the fact that the note for $10,000 was to be paid, by agreement of the parties, in Confederate notes? "The question is by no means free from difficulty. It cannot be questioned that the Confederate notes were issued in furtherance of an unlawful attempt to overthrow the Government of the United States by insurrectionary force. Nor is it a doubtful principle of law that no contracts made in aid of such an attempt can be enforced through the Courts of the country whose Government is thus assailed. But, was the contract of the parties to this suit a contract of that character? Can it be fairly described as a contract in aid of the rebellion? "In examining this question, the state of that part of the country in which it was made must be considered. It is familiar history, that early in 1861 the authorities of seven States, supported, as was alleged, by popular majorities, combined for the overthrow of the National Union, and for the establishment, within its boundaries, of a separate and independent confederation. A governmental organization, representing these States, was established at Montgomery, Alabama, first under a Provisional Constitution, and afterward under a constitution intended to be permanent. In the course of a few months four other States acceded to this Confederation, and the seat of the central authority was transferred to Richmond, Virginia. It was, by the central authority thus organized, and under its direction, that civil war was carried on upon a vast scale against the Government of the United States for more than four years. Its power was recognized as supreme in nearly the whole of the territory of the States confederated in insurrection. It was the actual Government of all the insurgent States except those portions of them protected from its control by the presence of the armed forces of the National Government. "What was the precise character of this Government in contemplation of law? "It is difficult to define it with exactness. Any definition that may be given may not improbably be found to require limitation and qualification. But the general principles of law relating to de facto Government will, we think, conduct us to a conclusion sufficiently accurate. "There are several degrees of what is called de facto Government. "Such a Government, in its highest degree, assumes a character very closely resembling that of a lawful Government. This is when the usurping Government expels the regular authorities from their customary seats and functions, and establishes itself in 109. It is an error therefore to suppose that it was the duty of the authorities in any British port to seize or detain Confederate ships of war on the ground that they were suspected or believed to have been originally obtained from England or equipped there by violation or evasion of the law. On the contrary, to do this would have been a departure from the principles of an impartial neutrality: to do it without some previous notice, excluding them from the right of admission to ing characteristic of such a Government is, that adherents to it in war against the Government de jure do not incur the penalties of treason; and under certain limitations, obligations assumed by it in behalf of the country, or otherwise, will, in general, be respected by the Government de jure when restored. 66 Examples of this description of Government de facto are found in English history. The statute 11 Henry VII, c. 1, relieves from penalties for treason all persons who, in defense of the King for the time being, wage war against those who endeavor to subvert his authority by force of arms, though warranted in so doing by their lawful monarch. "But this is where the usurper obtains actual possession of the royal authority of the kingdom; not when he has succeeded only in establishing his power over particular localities. Being in possession, allegiance is due to him as King de facto. "Another example may be found in the Government of England under the Commonwealth, first by Parliament, and afterwards by Cromwell as Protector. It was not, in the contemplation of law, a Government de jure, but it was a Government de facto in the most absolute sense. It incurred obligations and made conquests which remained the obligations and conquests of England after the Restoration. The better opinion doubtless is, that acts done in obedience to this Government could not be justly regarded as treasonable, though in hostility to the King de jure. Such acts were protected from criminal prosecution by the spirit, if not by the letter, of the statute of Henry the Seventh. It was held otherwise by the judges by whom Sir Henry Vane was tried for treason, in the year following the Restoration. But such a judgment, in such a time, has little authority. "It is very certain that the Confederate Government was never acknowledged by the United States as a de facto Government in this sense. Nor was it acknowledged "as such by other powers. No treaty was made by it with any civilized State. No obligations of a national character were created by it, binding, after its dissolution, on the States which it represented, or on the National Government. From a very early period of the civil war to its close, it was regarded as simply the military representative of the insurrection against the authority of the United States. "But there is another description of Government, called also by publicists a Government de facto, but which might, perhaps, be more aptly denominated a Government of paramount force. Its distinguishing characteristics are, (1,) that its existence is maintained by active military power, within the territories, and against the rightful authority of an established and lawful Government; and (2,) that while it exists, it must necessarily be obeyed in civil matters by private citizens, who, by acts of obedience, rendered in submission to such force, do not become responsible, as wrong-doers, for those acts, though not warranted by the laws of the rightful Government. Actual Governments of this sort are established over districts differing greatly in extent and conditions. They are usually administered directly by military authority, but they may be administered also by civil authority, supported more or less directly by military force. "One example of this sort of Government is found in the case of Castine, in Maine, reduced to British possession during the war of 1812. From the 1st of September, 1814, to the ratification of the Treaty of Peace in 1815, according to the judgment of this Court in United States vs. Rice, 'the British Government exercised all civil and military authority over the place. The authority of the United States over the territory was suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conqueror. By the surrender, the inhabitants passed under a temporary allegiance to the British Government, and were bound by such laws, and such only, as it chose to recognize and impose.' It is not to be inferred from this that the obligations of the people of Castine as citizens of the United States were abrogated. They were suspended merely by the presence, and only during the presence, of the paramount force. A like example was found in the case of Tampico, occupied during the war with Mexico by troops of the United States. It was determined by this Court, in Fleming vs. Page, that, although Tampico did not become a port of the United States in consequence of that occupation, still, having come, together with the whole State of Tamaulipas, of which it was part, into the exclusive possession of the national forces, it must be regarded and respected by other nations as the territory of the United States. These were cases of temporary possession of territory by lawful and regular Governments at war with the country of which the country so possessed was part. British ports according to the ordinary practice of nations, would have been a flagrant public wrong. 110. But it may be observed that in order to charge Great Britain with a breach of international duty, and a consequent heavy liability, on the plea that they were not arrested and detained by the authorities of the British Colonies visited by them, it would be necessary to prove, not only that the forbearance to do so was a mistaken exercise of judg "The Central Government, established for the insurgent States, differed from the temporary Governments at Castine and Tampico in the circumstance that its authority did not originate in lawful acts of regular war; but it was not, on that account, less actual or less supreme. And we think that it must be classed among the Governments of which these are examples. It is to be observed that the rights and obligations of a belligerent were conceded to it, in its military character, very soon after the war began, from motives of humanity and expediency by the United States. The whole territory controlled by it was thereafter held to be enemies' territory, and the inhabitants of that territory were held, in most respects, for enemies. To the extent, then, of actual supremacy, however unlawfully gained, in all matters of government within its military lines, the power of the insurgent Government cannot be questioned. That supremacy did, not justify acts of hostility towards the United States. How far it should excuse them must be left to the lawful Government upon the re-establishment of its authority. But it made obedience to its authority, in civil and local matters, not only a necessity but a duty. Without such obedience, civil order was impossible. "It was by this Government exercising its power throughout an immense territory that the Confederate notes were issued early in the war, and these notes in a short time became almost exclusively the currency of the insurgent States. As contracts in themselves, except in the contingency of successful revolution, these notes were nullities; for, except in that event, there could be no payer. They bore, indeed, this character upon their face, for they were made payable after the ratification of a treaty of peace between the Confederate States and the United States of America.' While the war lasted, however, they had a certain contingent value, and were used as money in nearly all the business transactions of many millions of people. They must be regarded, therefore, as a currency, imposed on the community by irresistible force. "It seems to follow as a necessary consequence from this actual supremacy of the insurgent Government, as a belligerent, within the territory where it circulated, and from the necessity of civil obedience on the part of all who remained in it, that this currency must be considered in courts of law in the same light as if it had been issued by a foreign Government, temporarily occupying a part of the territory of the United States. Contracts stipulating for payments in this currency cannot be regarded for that reason only as made in aid of the foreign invasion in the one case, or of the domestic insurrection in the other. They have no necessary relations to the hostile Government, whether invading or insurgent. They are transactions in the ordinary course of civil society; and, though they may indirectly and remotely promote the ends of the unlawful Government, are without blame, except when proved to have been entered into with actual intent to further invasion or insurrection. We cannot doubt that such contracts should be enforced in the courts of the United States, after the restoration of peace, to the extent of their just obligation. The first question, therefore, must receive an affirmative answer." The reasons given for the judgment of the Court on the two remaining questions have no bearing on the subject of this note. The United States Counter Case states (sec. iii, par. 3,) that the Arbitrators will observe "that the other Governments did not recognize the title" (Confederate States) "which the insurgents had taken for themselves." The British Proclamation of Neutrality, May 13, 1861, (Appendix to British Case, voì. iii, p. 17,) referred to the seceded States not as the "Confederate States," but as "certain States styling themselves the Confederate States;" and throughout the civil war they were constantly spoken of in the British official correspondence and notifications as the "so-styled Confederate States." On the other hand, the Spanish Proclamation of the 17th June, 1861, (Appendix to British Case, vol. iii, p. 23,) uses the designation "Confederate States of the South." The United States Minister at Madrid informed the Spanish Government that "the President had read" this Proclamation “with the greatest satisfaction." (Diplomatic correspondence laid before Congress, 1861, p. 224.) The circular instructions issued by the Government of Brazil, June 23, 1863, speak of "the steamer Alabama of the Confederate States." (Appendix, vol. iii, p. 25.) The term used in the French Declaration of the 10th June, 1861, viz, "les États qui prétendent former une Confédération particulière," is in fact equivalent in siguification to the words of the British Proclamation, "styling themselves." |