more invaded by the action of the general government than the action of the State governments can arrest or obstruct the course of the national power."'* Consequently, if those limitations were annulled, the State would be in all respects supreme, and, whenever those limitations are suspended, the States possess, for the time, all the powers of independent nations.

It may seem a solecism or a paradox that a rebellion, which has no legal character but that of the highest crime while it is weak, acquires rights which all the world must respect when it swells to the dimensions of civil war, and entitles itself to the attributes which law assigns to sovereignty when it achieves a successful revolution. Yet these distinctions are founded on principles of natural justice and enlightened policy; they have been approved by wise jurists and by the experience of mankind. The world, in the tribunal of opinion, may still pass judgment equally upon a riot, a rebellion, a civil war and a revolution, according to the standard of abstract morality. But when opinion is to assume the form of law and to be enforced by human authority, it becomes manifest that policy, humanity and justice require a very different treatment for each of those cases. Doubtless it may often be difficult to distinguish between a considerable insurrection merely and an ordinary civil war. But, contrasting extreme cases, we can appreciate a wide difference, both in moral and in legal estimation, between the reckless outbreak of a disorderly mob, perpetrating massacres and throwing society into confusion without a rational hope of accomplishing any general good and, on the contrary, a vast civil war which divides a nation into parties nearly equal, each embracing a proportionate number of wise and honest citizens, each organized with all the forms of regular government, each conducting war with great armies in obedience to civil authority and the laws of war, each maintaining a public cause which it believes to be just, each claiming the allegiance of citizens and each having a reasonable hope of final success. It is easy to mark the contrast between a whiskey *MCLEAN J. Worcester v. The State of Georgia, 6 Pet. 570.

insurrection and the war of secession which has been styled by high judicial authority "the greatest civil war known in the history of the human race. The SUPREME COURT by several decisions has established the proposition that the late conflict had the legal character of a civil war, as distinguished from an ordinary insurrection.

The state of civil war gives rise to the most important legal consequences. Long before our own experience of such a calamity, the Supreme Court had pointed out one of its principal effects. In a case which arose out of the contest between Spain and her American colonies before the independence of the latter had been acknowledged by the United States, the Court said: "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 as 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." The court thus recognized the general principle which is well established that, whenever a civil war is duly ascertained to exist, each of the parties is lawfully entitled to be treated as a belligerent nation having the sovereign rights of war. The court, in that case, applied the principle to the status of the insurrectionary party before its independence had been acknowledged even by our own government.

A particular effect of civil war, when it occurs between States which are united in a Confederacy is thus stated by a learned writer: "Intestine wars also among the Confederates break up the Union unless the Confederation be renewed on the conclusion of peace."

Since our Union is not a mere Confederacy nor yet a consolidated nation, and since the late war had a special character, it is necessary in the application of general princi

*GRIER J., Prize Cases, 2 Black, 669.

† STORY J., The Santissima Trinidad, 7 Wheat. 337. Bowyer on Public Law, 335.

ples to consider how far they are modified by these circumstances. In this direction we are guided to a considerable length by decisions of the Supreme Court made in cases which arose out of that very war. The court has decided that, at least from the month of April, 1861, when the President issued his proclamations declaring a blockade of the Southern coasts, there existed a CIVIL WAR, duly ascertained and made known by the proper political authority of the United States-the Executive.* In the case first cited, the Court spoke of the conflict as one "waged between the . Northern and Southern States." It was added that "in organizing this rebellion they (of the South) have acted as States claiming to be sovereign over all persons within. their respective limits and asserting a right to absolve their citizens from their allegiance to the Federal government. Several of these States have combined to form a new Confederacy, claiming to be acknowledged by the world as a sovereign State. Their right to do so is now (December term, 1862) being "decided by wager of battle." The court significantly observed that in 1861 foreign powers had recognized as belligerents certain States styling themselves the Confederate States of America." Thus it was made to appear that the parties to whom the rights and obligations of belligerents were to be attributed in this civil war were States.

With reference to this contest the court proceed to describe the effects of civil war in the language of Vattel. "A civil war breaks the bands of society and government, or at least suspends their force and effect; it produces in the nation two independent parties who consider each other as enemies and acknowledge no common judge. Those two parties therefore must necessarily be considered. as constituting, at least for a time, two separate bodies, two distinct societies. Having no common superior to judge between them, they stand in precisely the same predicament as two nations who engage in a contest and have recourse to arms. This being the case, it is very evident

*The Prize Cases, 2 Black 635; The Circassian, 2 Wallace 135.

that the common laws of war-those maxims of humanity, moderation and honor-ought to be observed by both parties in every civil war. Should the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make reprisals, &c., &c.; the war will become cruel, horrible and every day more destructive to the nation."

Accordingly it was determined that the seceding States and all their inhabitants, whether citizens or aliens, "loyal" or disloyal—at least, those actually residing within the military lines of the Confederates-were enemies; that the property of the inhabitants was liable to belligerent capture and that the legal questions arising upon such captures were to be determined, not according to the Constitution and laws of the United States, but "on the principles of international law as known and acknowledged among civilized States. Thus it appears that the seceding States ceased for a time to be subject to the Constitution and laws of the Union, and became, through the effect of civil war, subject to a different system of jurisprudence -international law. Since States were the parties to the civil war and since their internal governments remained entire, the bands of government which were broken, or the force and effect of which were suspended, could be no other than the Constitution and laws which had united the seceding States with the others. This inference is confirmed by the character of the war as qualified by its objects; which were, on the one side, to sever the Union and, on the other, to maintain it.

According to international law the parties to a war are considered equals in belligerent rights and obligations, each having all "the sovereign rights of war." And, since by this civil war the force and effect of the Federal Constitution were suspended in its application to the seceding States, they were, during a certain interval, in the position of independent nations, in all things "supreme.' The ancient governments which they retained continued to be, at least, de facto governments entitled to exercise all the powers which their own constitutions permitted.

The limitations upon their authority imposed by the Federal Constitution were suspended for the time. The same principle which denied to them and their citizens the right to invoke the protection of the Constitution against belligerent captures of persons and property and other acts of war, also absolved them from the obligations of the Constitution temporarily, that is to say, during the civil war.

It is not the judicial department of the government alone which has determined that, during the period of national convulsion, the seceding States were thus subject to international law instead of the Constitution and laws of the Union. Both the Executive and the Legislative Depart ments have also treated those States as belligerent powers and recognized the ancient governments which they retained as, at least, the de facto governments of the seceding States until they were actually suppressed by arms. Allusion has already been made to the proclamations declaring a blockade of the ports of entire States, issued by the President in April, 1861,* and justified by the Supreme Court on the ground of belligerent right and of a war thereby officially recognized as existing with those States. By another proclamation, issued August 16th, 1861, to declare certain States and parts of States in insurrection, it was recited that "the insurgents in all the said States claim to act under the authority thereof and such claim is not disclaimed by the persons exercising the functions of government in such State or States" &c. This proclamation was authorized by an Act of Congress (July 13th, 1861,) containing a similar reference to the States and to the persons exercising the functions of government therein. By a proclamation of July 1st, 1862, issued under an act of Congress of June 7th, 1862, the President declared that "the States of South Carolina, Florida, &c.....are now in insurrection and rebellion." It is scarcely necessary to enumerate the exchange of prisoners and other executive acts by which the laws of war were applied to

*That of April 27th assigns as a reason for the blockade of the ports of Virginia and North Carolina, certain hostile acts of "persons claiming to aet under authorities of" those States.