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governments of two nations is a war between all the individuals of the one, and all the individuals of which the other nation is composed. Govern
. ment is the representative of the will of all the people, and acts for the whole society. This is the theory in all governments, and the best writers on the law of nations concur in the doctrine, that when the sovereign of a state declares war against another sovereign, it implies that the whole nation declares war, and that all the subjects of the one are enemies to all the subjects of the other.”
Individual inclinations, prejudices, or partialities, must be subjected to, and controlled by, the determination of the government. The practical recog. nition of this principle cannot, with safety, be disregarded by the citizen.
Since the disuse of formal declarations of war, Legal commany disputes and difficulties have arisen, in the mencement of adjustment or enforcement of individual rights or obligations, from the impossibility of determining the precise date of the commencement of hostilities. Such difficulties are obviated by the constitutional provision of the United States government, which vests the war making power in the Congress alone. The date of the act of Congress, therefore, furnishes the precise period of the commencement of the peculiar duties and obligations which a condition of war imposes on the citizen.
Modern treaty stipulations between the several European nations, providing that “a rupture of pacific relations shall be regarded as having taken
place at the date of recall or dismissal of the respective ambassadors," have sought to avoid the embarrassments resulting from the absence of a formal declaration.
Who are law. ful belligerents.
any other than sovereign independent nations at war with each other, can be considered as lawful belligerents, with the rights and privileges of belligerent powers, seems not to have been made a subject of discussion by any of the elementary
writer's upon the law of nations. Importance of The question assumes no inconsiderable importthe question in
ance, in connection with the rebellion against the war in the U. constitutional government of the United States of
America, which has arisen among the people in the southern portion of the country, who, by the singular forbearance of the national government, have been enabled to seize the unprotected property of the nation, consisting of forts, arsenals, mints, custom houses, etc., erected and established among them, together with the arms, munitions of war, moneys, etc., contained therein; and having pretended to establish an independent confederacy, with all the paraphernalia of a sovereign nation, have levied armies to oppose the aroused determination of the nation to crush the insurrection, and have issued letters of marque and reprisal as a lawful belligerent, by means of which to inflict a blow upon the commerce of the country, which almost exclusively exists in that portion which remains loyal to the constitutional government.
The public documents directly relating to this
De Marten's Supp., vii., 213; id. x., 870; id. xi., 471, 483, 613.
of Great Brit
unnatural and wholly unprovoked and causeless civil conflict, including the several proclamations of the president of the United States, and of the leader of the insurrectionists, calling himself the president of the Confederate States, together with that of the sovereign of Great Britain, etc., will be found in the appendix.
The language of the proclamation of the British Proclamation queen, especially when considered in connection ain recognizwith that used, apparently with much delibera-ing the Southtion, by the lords who speak for the British min. tionists as law
ful belligeristry, seemed to leave no doubt of the original de- ents. termination of the British government to regard the persons in revolt against the constituted government of the United States as lawful belligerents, and to observe a strict neutrality between them and the federal government.
The naval power of the federal government being Effect of this quite sufficient to effect a complete blockade of all nations. the ports of the rebel territory, this position on the part of Great Britain would assume a vast practical importance, inasmuch as it would open the British ports, wheresoever situated, as a shelter, asylum and protection to the privateers of the rebel community, into which they might carry their prizes and hold them in safety, to await a condemnation of a court, purporting to possess the powers of admiralty in the country of the captors.
In the carefully rehearsed colloquy upon this subject in the British Parliament, the distinguished lord by whom it was specially announced as the policy of the British government, cited as a precedent justifying the position, the recognition of Greece as a lawful belligerent, during her efforts
by the law of the United States.
to become independent of Turkey, before her independence was recognized by Great Britain or any
other nation. Legislative The learned lord (John Russell), by consulting and judicial precedents in the records of the highest judicial tribunals of the
United States, and the opinions of the most distinguished jurist who has ever adorned the American bench (Chief-Justice Marshall), might have found precedents much more to his purpose, though perhaps not more susceptible of being distinguished from the case presented in the present revolt against the integrity of the United States government.
One Palmer and others were indicted in the Circuit Court of the United States in the district of Massachusetts, for an alleged robbery and piracy on the high seas. They were defended as lawful privateers, acting under the authority and commission of a lawful belligerent.
a Upon a division, the question certified for the determination of the Supreme Court of the United States was as follows:
“ Whether any revolted colony, district or people, who have thrown off their allegiance to the mother country, but have never been acknowledged by the United States as a sovereign and independ. ent nation or power, have authority to issue commissions to make captures. on the high seas, of the persons, property, and vessels of the subjects of the mother country who retain their allegiance; and whether the captures made under such commissions are, as to the United States, to be deemed lawful; and whether the forcible seizing, with violence, and by putting in fear of the persons on board of the vessels, the property of the subjects of the mother country who retain their allegiance, on the high seas, in virtue of such commissions, is not to be deemed a robbery or piracy within the act of Congress.”
Upon this question, the opinion of the Supreme Court of the United States, pronounced by Chief Justice Marshall, was clear and explicit.
“When,” says he, "a civil war rages in a foreign nation, one part of which separates itself from the old established government and erects itself into a new and distinct government, the courts of the Union must view and treat the newly constituted government as it is viewed by the legislative and executive departments of the government of the United States. If that government remain neutral, but recognizes the existence of civil war, the courts of the Union cannot consider as criminal those acts of hostility which are authorized, and which the new government may direct against its enemy.” “ The government of the United States having recognized the existence of the civil war in question, the acts of the defendants were justified under the commission of the revolting territory, as a lawfu] belligerent, and were in no manner unlawful or in violation of the act of Congress.!"
In a later case, in which the same question arose, the same court says:
“The government of the United States having recognized the existence of civil war between Spain and her colonies, our courts are bound to recognize as lawful, those acts which war authorize, and the new government in South America may direct.
* United States vs. Palmer, 4 Curtis, S. C. Decisions ; 3 Wheat.