I ^^'' ^r'&'^. ,i^«V\T*;^/';^;;,.::^.::-;,'-';;j,'^^i,;>:::v;r L I B RARY OF THE U N 1VER.S1TY Of ILLI NOIS ^ ^V'^v' '^fJ .^i s.' ir'v I f TWO LECTURES ON THE PRESENT AMERICAN WAR. BY MOUNTAGUE BERNARD, B.C.L., CHICHELE PROFESSOR OF INTERNATIONAL LAW AND DIPLOMACY IN THE UNIVERSITY OF OXFORD. NOVEMBER, M DCCC LXI. J. H. AND Jas. PARKER. LECTURE I. 'pHE present war in America may be regarded from two points of view — one external, the other internal. As foreigners, we may inquire how it affects, or may affect hereafter, the rights and obligations — I must not here add, the interests — of our own and other foreign countries, and their established relations with the United States. This is the point of view proper to an English or French statesman ; this inquiry, up to a certain point, it has already been the duty of the chief European governments to make ; and it will be necessary for them to pursue it further, unless the course of events should take a different turn. So great and massive a structure as the American Commonwealth, though seated on a remote continent, and separated from ours by its tra- ditional policy of isolation as well as by an immense ocean, cannot fall asunder without sending a wave to break upon the shores of Europe, nor without raising a cloud of questions troublesome enough to exact from those who have to deal with them much circumspection and care. On the other hand, we may in imagination place ourselves within that circle of fire which is con- suming the gains of a most industrious, and the splendid hopes of a most restless and ambitious people. In America itself, and among Americans, the revolution, should it run its course, will give rise to some questions strictly international, and to others of a class commonly handled by international jurists, though more properly belonging to public or constitutional law. The nature B 2 4 of the Federal Constitution, the obUgations it imposes, and the disputed right of " secession," fall within this latter class. I am glad to lay hold of the opportunity, which these events afford, of illustrating some simple principles of the law of nations. Like every other body of law, it requires, to be understood, constant reference to cases and examples ; and it realizes itself to our apprehension only wdien we have ourselves seen it in operation and consulted it upon facts passing under our eyes. Here, if anywhere, these matters may be discussed temperately. We have been reproached with being indifferent ; at least then we may hope to be impartial. I shall take the external point of view in this Lecture, and the internal in the next ; and shall refrain in both, as far as I can, from entering into questions of detail, or of mere opinion, or of feeling. Twelve months ago there was a great Power, called the United States of North America, in amity with Great Britain, and bound to us by various treaties. That Power still exists, maintains its intercourse with us, observes and claims the benefits of its treaty engagements, and is the only sovereign power known to the British Govern- ment north of the Gulf of Mexico. But seven of the circles which composed its territory have declared them- selves independent of it, adopted a separate constitu- tion, elected a legislature and a president, commissioned privateers, raised an army which is reckoned to exceed 250,000 men, fought and won a pitched battle, and are waging with various success, over a line of nearly a thou- sand miles, a defensive warfare against the old govern- ment of the Union. Practically, at the present time, eleven States are in revolt, with a white population of nearly six millions, and an area of more than 700,000 square miles, which raises all the cotton, almost all the^^^ uiuc rice, about one-sixth of the wheat, and nearly one-half of the Indian corn and cattle grown within the former circuit of the United States, and more than two-thirds in value of their whole exported produce. This is the present state of affairs, so far as we need trouble ourselves with it. I have intentionally put out of sight in the fore- going sentences the peculiarities of the American con- stitution, and treated the struggle as if it had arisen in France, Russia, or Spain. And this for two rea- sons. First, because the thirteen original States chose deliberately, when they framed their Articles of Con- federation, to be one State in their intercourse with foreign Powers, and that choice, subsequently embodied in the constitution, has been uniformly adhered to and respected. Great Britain knows not anything, and has never been suffered to know anything, of Virginia, or South Carolina, or Illinois ^. Secondly, because the course to be pursued by the British Government does not depend in any way on the nature or the strin- gency of those ties which have been so rudely broken. Whether the United States formed a league or a re- public, or both at once, or neither, — whether rebellion or secession be the apter word, — our conduct in the present stage of the quarrel (whatever it may be here- after) ought to be precisely the same. The two following propositions are to be found, in some shape, in every standard book on international law : — First, that during a civil war, foreign nations are ^ This is substantially true, notwithstanding the form of the recognition in the Treaty of 1783, — "His Britannic Majesty ac- knowledges the said United States, viz., New Hampshire, &c., to be free, sovereign, and independent States; that he treats with them as such," &c. entitled to treat Loth the contending parties as bel- ligerents — that is, as armed with the exceptional rights, and subject to the conventional restraints, which inter- national law bestows and imposes on independent powers at war with one another. This principle, we all know, has been acted on by the British and French Governments, and is in full operation. Seco7idli/, that when a revolted province or colony has succeeded in establishing its independence, and has ac- quired an organization sufficient for the discharge of ordinary international duties, foreign nations are entitled to recognise it as independent, though unacknowledged as such by the parent State. The time has not come, and perhaps may not come at all, for the practical ap- plication of this principle to the so-called Confederate States ; but the consideration of it, under existing cir- cumstances, can hardly be deemed premature. I will advert hereafter to the additions and qualifica- tions with which these propositions have been sometimes encumbered. They are true as they stand, without ad- dition or qualification. You will observe that these are two distinct proposi- tions, each applying to a distinct state of circumstances. The recognition of belligerency is quite distinct from that of independence. The one is provisional, the other definitive. The one concedes the exercise of certain limited privileges, which must expire with the termina- tion of the war ; the other acknowledges the recipient as entitled to all the ordinary rights, and subject to the responsibilities, which belong to a sovereign member of the family of nations. Each consists in applying to cer- tain facts certain considerations of equity and conveni- ence ; but the facts are different, and the considerations, though nearly allied, are not the same. Lastly, the one may, or may not, be followed by the other. A revolted province may be recognised as a belligerent, and yet may never achieve independence ; or may be recognised as independent by powers which never accorded to it belligerent rights while the contest was midecided. I. If we ask on what principle it is that this pro- visional recognition, which undoubtedly conveys some material advantages, may be granted to the rebel without just offence to the sovereign, we shall find the question variously answered. According to some, it is due as of right to any body of people enabled by their numbers and organization to carry on regular warfare. Don Jose Maria de Pando, an able Spanish publicist, who was born in Peru, and was for a time in the public service of that Eepublic after the battle of Ayacucho, is, naturally enough, of this opinion^. Others insist wholly on rea- sons of humanity and convenience. Both grounds are put, neatly and forcibly, in a well-known despatch of Mr, Canning's, written in answer to the remonstrances of the Turkish Government during the Greek war : — " The character of belligerency is not so much a principle as a fact ; a certain degree of force and consistency acquired by any mass of population engaged in war entitles that pojju- lation to be treated as a belligerent, and even if their title were questionable, renders it the interest, well understood, of all civilized nations so to treat them. For what is the alter- native ? A power or community (whichever it may be called) which is at war with another, and which covers the sea with its cruisers, must either be acknowledged as a belligerent or treated as a pirate. The description of ' rebel,^ under which alone the Porte was willing to consider the Greeks, was not one which could constitute a rule for the conduct of foreign '^ Pando, JElementos del Dereclio Internacional, p. 587, ed. 1852. 8 nations, except eitlier on a presumption that foreign nations have a right to take cognizance of the internal disturbances of the Turkish dominions, (a right which, if admitted, some nations might exercise in favour of the Greek side of the quarrel,) or on the pretension that in a dispute between a sovereign and a portion of his subjects all foreign Govern- ments are bound by an overruling obligation to make common cause with the sovereign. If these two equally untenable pro- positions were rejected, (as they necessarily must have been by the British Government^ there remained but the single option between belligerent and pirate. But what monstrous conse- quences would follow from treating as pirates a population of millions of souls, to whom by that very treatment the right would be conveyed, and on whom, according to the natural law of self-defence, the obligation would be imposed of making terrible reprisals ! Humanity required that a contest, marked in its outset by disgusting barbarities, should be brought within the regulated limits of civilized war." Let me try to make this a little clearer. By " belli- gerent rights" we mean in this discussion the riglits of war as they affect bystanders or neutrals. The rights which usage and opinion permit to enemies as against each other, bystanders have it not in their power either to concede or to deny. We cannot admit, any more than we can reject, the claim of the Southerners to have their soldiers or privateersmen who may fall into the enemy's hands treated as prisoners of war, however clearly to our minds prudence and humanity are in its favour. But it rests with us to determine whether we will allow our merchantmen to be visited and searched at sea by Southern cruisers or privateers for despatches or contraband, and whether we would recognise (were such a thing to become possible) a blockade of a Northern port by a Southern squadron. It might not be abso- lutely impossible for us, if we chose, to refuse these pri- vileges to the South, without treathig the Southern pri- vateers as pirates. But what would be the consequence ? Clearly this, that we must either refuse them to the North also, or must become really, though not actively, participants in the war. To submit to the visit of a Northern cruiser and resist a Southern one — to re- cognise the blockade of New Orleans, not being pre- pared also to recognise a blockade of New York — would be tantamount to becoming the allies of the North and the enemies of the South. In a word, we must quarrel with either one or both — an alternative which we are certainly at liberty to decline. The right to accord this qualified and provisional recognition is the direct consequence, and necessary safeguard, of the right to be neutral in a strife in which we have no concern. The same argument may be put, slightly varied, in the form of an argumentum ad hominem. Since without belligerents there can be no war, and without war there can be no rights of war, it is clear that a Government which, in dealing with foreign nations, denies to its adversaries the belligerent character, renounces ipso facto the privileges of that character for itself. Such a govern- ment, then, confines itself, as against foreigners, to such rights only as it could enforce in time of peace. Although, therefore, in the exercise of those rights it may close (un- less restrained by treaty) any of its own ports to foreign trade, subject to the consequences of its conduct in that respect, it cannot assume the belligerent right of blockade ^ Neither can it search, arrest, or detain any foreign vessel on the high seas. " These two operations differ iu their practical effect on foreign commerce. The British Parliament took the first course in 1775, by passing the American Prohibitory Act. The Spanish Govern- 10 In truth, a refusal of these privileges, which are esta- blished because they have come to be considered indis- uieut, in 1822, attempted to prohibit all intercourse ■nitli tlie ports of Spanish America, but it was resisted (very justly under the circumstances) by England, and denounced by the United States as "an outrage on the rights of neutral nations ;" and to combine the proliilition (which assumed that these ports were actually subject to Spain) with a 'blockade (which assumed the reverse) was affirmed by the latter Government to be absurd. Very lately it has insisted, against that of the Two Sicilies, that a nation cannot blockade its own ports. Mr. Lincoln's Proclamation of April 19, 1861, announced a blockade of all the ports in seven States, (aftervi-ards extended to nine,) " in pursuance" — I take these words from the New York Herald — " of the laws of the United States and the law of nations." Tiie Government of Washington cannot be acquitted, I think, of having pushed to an extravagant length, in this war, the doc- trine of a helium mixtmn, on which, in 1858, the Neapolitan Prize Commission condemned the " Cagliari." Little need be said, how- ever, on this head. A sovereign may undoubtedly declare, ex- pressly or virtually, that a state of war exists between himself and his revolted subjects, without foregoing his claim to their allegiance. After such a declaration, unless there were strong reason to consider it illusory, foreign nations would, as a matter of course, concede to him, and to his antagonists, the exercise of ordinary belligerent rights — as they might have done without a declaration, upon simple proof of the existence of a war. If he should afterwards, during the contest, hang his prisoners, while treating captured property as prize, his conduct would not only be barbarous and unwise, but it would throw doubt upon the hona fides of his declaration, and might raise questions as to the legal effect of sentences pronounced in his prize-courts. If, on the other hand, he should persist in treating his measures of hos- tility as mere measures of repression or restriction — as exertions of civil authority, and not as acts of war — (sending his captures, as in tliat case he must, before courts of municipal, not of inter- national law) — he would thereby preclude himself, as against foreigners, from claiming belligerent rights ; and the question might arise whether foreigners were bound to submit to restric- tions excluding them from ports and places not in his possession. 11 pensable for the ejffectual prosecution of hostilities, would never be tolerated by any Power strong enough to resent it. No Government with arms in its hands, whatever its character or origin, would tamely submit to see its blockades set at nought, and its plans frustrated by the conveyance to the enemy, under the very guns of its own fleet, of despatches, troops, and munitions of war. Such a refusal would speedily be followed by hostile collisions on every sea, and the refusing nation would soon find itself engaged, against its will, in irregular warfare with those asjainst whom it had no cause of quarrel. These considerations shew conclusively that for the concession of belligerent rights there is but one neces- sary, as there is but one sufficient, justification — the ex- istence of war. Wherever the state of Avar exists, be the parties waging it who or what they may, it is the right of all those who are not concerned in it to allow, while keeping themselves aloof, to both sides indiffer- ently all the privileges which are accorded to belligerent sovereign states by the law of nations. I say, wherever war exists. What, then, is meant by war? Like many terms of international law, it is in- capable of precise definition. Publicists, from Grotius downwards, have supplied us with attempts more or less unsuccessful. It is clear, however, that it involves the notions, first, of a contest in which violence is em- j)loyed ; secondly, of independent sovereignty in each belligerent, or of an amount of force and organization, on But whichever course lie may think fit to adopt, the rights and obligations of foreign nations, in all transactions which may arise out of the contest, must be either such as belong to a state of peace, or such as belong to a state of war. International law, strictly speaking, knows iiothiag of " mixed" wars. 12 bath sides, sufficient to admit of a sustained struggle. A street riot is not a war, nor a sedition suppressed before it gains head, though a petty repubUc which musters only a few companies of militia may carry ( n as regular a war as the Emperor of all the Russias. Every one would say that there was an insurrection at Vienna in 1848, and a civil war in Hungary in 1849. It would be trifling with language to dignify by that name the rebellion of which Massachusetts was the scene in 1786, and it would be equally trifling with language to withhold it from the present contest in America*^. Bat the amount of force and organization which will satisfy the word cannot be measured by any definite standard or expressed in precise terms. The clearest authorities on this subject are American authorities. I shall refer hereafter to the course pur- sued by the United States in the contest between Spain and her American colonies; it is enough here to say that the Government of Washington declared itself neutral, and the courts of law steadily pushed this de- claration to its legitimate consequences. Thus it was decided again and again that captures made by Spanish- American cruisers were to be regarded as lawful, unless the capturing vessel had been fitted out in a port of the United States, and in violation of their neutrality^. " All "* It has lately been decided, after argument, by a Prize Court in the United States, that a state of war exists which justifies the confiscation of a British ship captured in the attempt to run a blockade. The absurd idea of attempting to collect duties at sea, which would have immediately involved the Union in a war with England and France, has been tacitly abandoned. It is astonishing that it should ever have found its way into an Act of Congress. " The " Santissima Trinidad," Wheaton's Reports, vii. 283; the United States v. Palmer, lb. iii. 610 ; the " Diviua Pastora," 13 captures made by eacli," said Mr. Justice Story, in the case of the " Santissima Trinidad," " must be considered as having the same vaUdity, and all the immunities which may be claimed by public ships in our ports under lb. iv. 52 ; the " Nuestra Seuora de la Caridad," lb. 502 ; the "Estrella," lb. 307; the "ALred,"' Dallwon's R., iii. ; Talbot V. Janson, Dall., iii. 133. See also Wheaton's Elements, (by Lawrence.) p. 32. In supporting the claim of Paul Jones's representatives against Denmark, Mr. Wbeatou argued that Denmark was not only entitled, but hound to accord belligerent rights in 1779 to the United States, which she had not tlien recognised, and therefore to make coiupeasation for prizes which bad been carried into her ports, and by her restored to their British owners. And this ground was sustained, I believe, by Mr. Adams, when Secretary of State, and a few years ago by the present United States' Secretary at War, Mr. Cameron, in a re- port to the Senate — {Speech of the Hon. Elisha R. Potter, in the Senate of Rliode Island, upon the Resolution in Support of the Union; Providence, 1861). As Mr. Potter's speech was made in introducing a resolution which pledged the State of Rhode Island " and its entire resources" to the President of the United States, for the preservation of the Union, I may be permitted to make two further quotations from it. " Texas declared herself independent of Mexico in March, 1836, and within six months after her flag appeared in New York city ; and when the Mexican Minister remonstrated, out- Government answered that in the previous civil wars between Spain and her colonies ' it had never been held necessary, as a preliminary to the extension of the rights of hospitality to either, that the chances of war should be balanced, and the probability of eventual success determined. For this purpose it had been deemed sufficient that the party had actually declared its independence, and at the time was actually maintaining it." ..." When civil war breaks the bonds of society and of government, or at least suspends their force and eflect, it gives birth in the nation to two independent parties, who regard each other as enemies, and acknowledge no common judge. It is of necessity, tlierefore, that these two parties should be considered by foreign states as two distinct and independent nations." — Extract from Report of Committee of United States' House of Representatives on Foreign Relations, March 19, 1822. 14 the law of nations must be considered as equally the right of each." Each was alike entitled to "asylum, hospitality, and intercourse," except so far as special privileges might have been secured to Spain by pre- existing treaties. A commission under the seal of one of the new Governments was conclusive proof that the ship furnished with it was a public ship, (though the seal could not be allowed to prove itself,) and, in the absence of a commission, any evidence would do which would have been sufficient in the case of an acknow- ledged State. Nor was it an argument for restitution that the capturing ship was American-built, and origi- nally American- owned, and (like the " Bermuda") had been armed, sent out, and sold for the very purpose of being employed in the war. "There is nothing," said the same eminent judge in the same case, " there is nothing in our laws, or in the law of nations, that for- bids our citizens from sending armed vessels as well as munitions of war to foreign ports for sale. It is a com- mercial adventure which no nation is bound to pro- hibit, and which only exposes the persons engaged in it to the penalty of confiscation ^" " It remains to be seen," observes Pando, after referring to some of these cases, " whether the Union will approve these princi- ples, in case they should hereafter be adopted by foreign ^ See on this point Phillimore's Commentaries, iii, 323. Sir J. Mackintosh, in his speech against the Foreign Eulistment xict, 10th June, 1819, takes notice that it does not prohibit British subjects from supplying transports. Nor was it designed to pre- vent tlie ships of the belligerents from obtaining provisions in British ports, but only " from shipping warlike stores, such as guns, and other things obviously and manifestly intended for no other purpose than war." (Speech of the Attorney General, 13th May, 1819.) 15 Powers upon a civil war arising between the members of that Confederation^." It is a question at present of no practical moment whether Mr. Wheaton and other writers of respectable authority are right in affirming, with Vattel, that foreign powers are not bound to be neutral spectators of a civil war, but may if they please espouse that cause which they think just. Mr. Canning, as we have seen, de- clared it an untenable proposition, which the British Government must necessarily reject, that foreign na- tions had a right to take cognizance of the internal disturbances of the Turkish empire, and this at a time when he had recognised to the fullest extent the belli- gerent rights of the Greeks ; an opinion not really belied by the subsequent intervention of Navarino. For reasons stated in my last public Lecture, I hold that Mr. Canning was right in principle and Vattel wrong, and that, in determining to leave to the Americans the settlement of their internal differences, at the least until they shall have clearly ceased to be mere internal differences, (a qualification which may in course of time become mate- rial,) the Governments of Great Britain and France have done only what they were bound to do — bound not by prudence alone, but by a due respect for the freedom and independence of the American people. But this is a question of a different order, which rises out of the sphere of positive international law into the higher re- gions of international morality. Between a war under- taken by us as allies of either belligerent against the other, and a course of conduct which would justify either belligerent in declaring war against us, there is a dis- tinction analogous to that between an unconstitutional act and an illegal one. g p. 586. 16 II. The second proposition, that independence ac- tually achieved may lawfully be recognised by foreign nations, is in principle still clearer than the first. I have just spoken of this quarrel as an internal or domestic quarrel. Tiiey think and speak otherwise, we ail know, south of the Potomac ; and should the Con- federate States succeed in establishing their independ- ence, they will have been independent, in the contem- plation of their own law, from the date of their secession. But foreign States cannot anticipate the decision of a doubtful contest. So far as it is necessary for them to act on one view or the other, they must consider the old state of things as subsisting until the establishment of a new one, and the Americans as one peo[)le till it is ascertained that they have become two. So long we are bound to wait, but no longer. Sovereignty, speaking accurately, is a matter of fact. He who rules and is obeyed, not being himself subject to a superior, is sovereign ; he who is not obeyed, or is subject to a superior, is not sovereign. The inter- national jurist, when he speaks of the rights of sove- reignty or sovereign rights, means the rights which under his code attach themselves to the fact of sovereignty. They are incidents which belong to the actual possession of sovereign power, are acquired with it, and are lost with it. The claim to he sovereign, if it exist any- where divorced from actual possession, is a claim not created nor guaranteed by the law of nations, which re- gards States as units, and is as foreign to disputes l)etvveen sovereign and subject as to the disputes of individual citizens with each other, — as foreign as the law of this University is to the internal administration of a College. Nor could it ever be wrested to such pur- poses without a perversion of its essential character, nor 17 without speedily becoming an engine of the most intoler- able oppression. It has no standards, no principles, no remedies, no authority for the decision of such ques- tions ; it will be no judge of them, and dismisses the litigants from its judgment-seat. The logical con- sequence of these positions is that which I have just laid down. In recognising the possession of sovereignty, however acquired, as a title to the enjoyment of sove- reign rights, in refusing to recognise those rights where they have ceased to be clothed with possession, we only follow an established principle of international law. This reasoning, if it be right, is of course fatal to a qualification which some eminent German writers ^ in deference- to the influences or opinions reigning around them, have attempted, but in a hesitating way and with some manifest misgivings, to engraft upon the rule. A new State may be recognised, they say, provided its possession of independence be not a tortious possession — be not illegally acquired (says Martens) by a " manifestly unjust revolt." The notion is borrowed from the civil law, in which it has a meaning, and interpolated into another code where it has none. Who is to determine, and by what standard, whether the possession be tortious, the revolt unjust? A rebellion in the Austrian empire attacks the law of that empire ; a rebellion in the United States attacks the law of the United States ; rebellion anywhere may be morally criminal, or it may not : but in the view of the law of nations rebellion is neither right nor wrong, law- ful nor unlawful; it is simply a matter with which that law has nothing to do. False, however, as this qualification clearly is, and virtually destructive of the ^ Martens, Precis, § 80 ; Kliiber, EuropdiscTie VolJcerrecht, § 23. See HefFter, Europ. Volk., § 23. C 18 rule to which it is appended, it is so essentially attrac- tive to the mind of a German jurist, and so agreeable to the lingering traditions of the Holy Alliance, that it cannot even now be deemed entirely exploded, and would probably be upheld at St. Petersburg as well as at Vienna. In practice, and in the writings of publicists, it is usual to evade the admission that independence confers a right to be recognised, as well as a capacity for recog- nition. In principle it clearly does so. No independent State is bound to submit patiently, I do not say to the refusal of ordinary diplomatic intercourse, but to the substantial injury as well as indignity of having its flag, its officers, and its very existence ignored by the exe- cutive of other nations, and of being refused admis- sion, when it has occasion to sue in their courts of law. It is an established maxim, however, that the time and manner of recognition are questions of prudence and policy for the recognising State ; and prudence and policy have commonly prevented the claim from being very hotly urged on the one side, as well as from being very stiffly resisted on the other. I will not trouble you with the distinction which has been drawn between recognitions " virtual " and "formal," nor with the different meanings ascribed to those words by different authorities, (by Sir J. Mackin- tosh, for instance, and Dr. Phillimore,) nor is it, in fact, a distinction of much importance. To "recognise" a new State is to treat it by some public act as indepen- dent ; and provided this be the effect of the act, there is nothing essential in its external form. Such ques- tions as this belong to the closing scenes of the period of struggle and transition, when consolidation is far ad- vanced, and the trial of strength is nearly over. During 19 the whole of that period foreign governments are com- pelled to resort to shifts and expedients, in order, whi'st protecting as well as they can the interests of their own subjects, to avoid those consequences which usually at- tend the slightest interference in a family quarrel. The concession of belligerent rights is one of these shifts, and a very anomalous one it is. The government of the Confederate States of North America is a govern- ment unknown to Downing-street, and which would not be permitted to sue in Westminster Hall. But it is not absolutely unknown in Downing-street, or at the Admiralty, that there is a body of people in America who are carrying on a war, and that they have issued commissions, and have a flag with (we will say) only seven stars. Instructions, we may suppose, go out ac- cordingly to the West Indian station to permit the exercise of belligerent privileges to vessels carrying this commis- sion, and flying this flag with seven stars, — not as being the commission and flag of an independent government, but simply as marks of identification. The same body of people, by-and-bye, may send an agent, informally accredited, to push their interests in London. He is but a private gentleman, it is true, yet he may leave his card at the Foreign Office, and possibly find his way upstairs. Ships begin to drop in at West Indian ports, bearing the same seven stars; their papers are some- what irregular, they do not appear to have sailed with a proper clearance, and they are unaccountably shy of the United States' consul, but the governor or other local official overlooks (having no instructions to see them) these little peculiarities ; to him they are United States' ships, in spite of their seven stars, since they come from Charleston or New Orleans : he is happy to receive, but much happier to get rid of them, if it can be done with- c 2 20 out disputes with the American Consulate. By dint of a little tact and civility, of some opportune infirmities of sight and hearing, and of judicious connivance on all sides, such a state of things as I have imagined may last for some time without very great inconvenience ; especially if, from the maintenance of a blockade or from any other cause, there be little intercourse with the re- volted people. But it is too troublesome (as we should see if we followed it into details) to last for ever. Press- ing applications begin to arrive for the appointment and reception of consuls. They are refused — renewed — and at last granted. This has been called a virtual recog- nition. A consul-general, said the American Secretary of State in 1818, to the agent from Buenos Ayres, " can- not be received without recognising the authority from which his commission or credentials proceed as a sove- reign and independent Power." Logically this is true; practically, the appointment of consuls does not carry with it, nor draw immediately after it, a complete re- cognition. A consul being an officer with no political character, concerned only with the regulation of com- merce, and very necessary for that purpose, it has still been found possible, as we shall see hereafter, to delay for years afterwards that final and irrevocable recog- nition which is conveyed in the interchange of public ministers and the negotiation of a treaty. III. A cursory review of the leading cases in which these questions have arisen since the Peace of Westphalia will enable us to form some idea how these principles have been applied, and how far they are established by the practice of nations. When the North American colonies of Great Britain threw off their allegiance to the mother-country, two centuries had elapsed since the revolt of the Netherlands, 21 and nearly a century and a half since Portugal, having emancipated herself from the tyranny of Spain, had been welcomed with open arms by the English Government of the day. The States of Europe had in that interval become more compact, their organization more effective and more closely knit, their boundaries more settled, the authority of princes and governments more firmly esta- blished, the interests which they have in common more clearly understood, as well as the protection which those interests derive from the established courtesies of inter- national intercourse. On the other hand, liberal theo- ries of government had become the reigning fashion ; it was the age of Rousseau, the Social Compact, and the Rights of Man. Grotius had been practically super- seded by Vattel. Great Britain, elevated by the war of 1756 to a maritime supremacy which she used as men are too apt to use unaccustomed and uncontrolled power, had become what she has ever since continued to be, an object of jealousy to every maritime State in Europe, but especially to France, smarting under her recent reverses, and panting for an opportunity of repairing them. Such an opportunity was offered by the American rebellion, and M. de Vergennes threw himself eagerly into the old policy of Richelieu and Mazarin, the policy which had supported the Protestant states of the Empire against the Emperor, the Dutch, the Catalans, and Portugal against Spain, and had fostered in Scotland and in England the seeds of civil war. The discussion — or rather the alter- cation, for it consisted chiefly of a lively interchange of reproaches and recriminations — which ensued between the French and English Governments, may be read in the Causes Celebres dii Droit des Gens ; and it is instructive as shewing the degree of acceptance which the principles I have stated had then obtained, and as the earliest in- 22 stance of a practical appeal to them after the law of nations had become a science. The doctrines advanced at that time by the French minister differed in fact very- little from those maintained fifty years afterwards by Mackintosh and Canning. His master pretended not, he said, to interfere as judge or arbiter in a quarrel be- tween a neighbouring state and her own dependencies. He was under no obligation to treat the latter as rebels, to close his ports to them, or to deny them, what a due regard to the interests of his own subjects commanded him to grant, that free intercourse and those common advantages which France conceded to all other civilized nations. He had observed, whilst the result of the con- test continued to be doubtful, a strict and scrupulous neutrality. All that it depended on him to do in order to prevent the exportation to America of arms and munitions of war he had scrupulously and faithfully done. Commerce, said M. de Vergennes, in time of war may be divided into two branches, the one consist- ing of articles contraband of war, the other of all articles not contraband. With respect to the latter class, the subjects of every neutral power have a right to trade in them with each or either belligerent as freely as in time of peace ; the former are liable to be seized and confis- cated by the exercise of the ordinary belligerent right of visitation and search, as regulated, in default of special treaties, by international usage. But neither treaties nor usage make the exportation of contraband a breach of neutrality; they only condemn the individual spe- culator to the penalty of confiscation. As to the United States, he argued, there were only two points of view under which it was possible to consider them. They were rebels, or they were belligerents ; they were sub- jects of Great Britain, or they were an independent 23 people. On the first hypothesis, Great Britain had an unquestionable right to enforce against them her pro- hibitory laws ; but it was equally clear that she had no right whatever to enforce those laws against the sub- jects of other nations, except within her own territorial waters, — in other words, within cannon-shot of the Ame- rican shore. On the second, she had the rights of a belligerent and no more ; and the obligations of Trance as a neutral power were defined by the Treaty of Utrecht, which, without binding either party to prohibit the export of contraband, simply declared that vessels so freighted might be captured and condemned as good prize. The King had, in fact, exceeded these obli- gations : he had publicly prohibited the traffic ; and had done, to prevent it, all that he possibly could without violating the liberties of his subjects, and subjecting their commerce to a species of inquisition not prac- tised, said the indignant statesman, in any corner of the universe, and which the Enghsh themselves would have been the first to condemn. Further, adhering re- ligiously to the stipulations of the commercial Treaty of Utrecht, (a treaty to which the English Parliament had refused to give effect,) he had refused permission to American privateers to equip or to sell their prizes in his ports, or to remain there beyond the time limited by that treaty. Such, and so irreproachable, had been the conduct of France throughout the war; when at last, after patiently enduring the most groundless complaints and repeated outrages, menaced by warlike preparations, and convinced that the efforts of Great Britain had become hopeless and the independence of the colonies practically secure, she listened to the solicitations' of their deputies, what had been her reply ? " The King an- swered that he could very well regard the independence 24 of the colonies as existing, but that it appertained not to him to recognise it, because he had not the right to ■ act as judge in the matter ; neither could he guarantee it, because he had no intention of making war in its de- fence : he refused therefore to enter into an offensive alli- ance, and consented only to a treaty of friendship and commercvj. But as it was more than possible that the Court of London had formed the design of attacking Prance, His Majesty deemed it right to conclude with the United States an eventual and purely defensive alli- ance," which was kept secret because it was only to take effect on a future contingency. Was this proceeding at variance with the law and practice of nations ? Could England, which had so often changed her dynasty, contend that the rights acquired by a legitimate possession were indefeasible by time or circumstances ? Could she deny that her own possession was in fact lost, and had never been recovered ? or could she avoid the consequences of this fact by the futile plea that the possession acquired by the Americans was unlawful ? " Que les Etats-Unis aient eu ou non le droit d'abjurer la souverainete de FAngleterre, que la possession, ou ils sont de leur independance, soit legitime ou non ; ce n'est point a la France a discuter ces deux questions. Le roi n'est point le juge des querelles domestiques de 1' Angleterre. Ni le droit des gens, ni les traites, ni la morale, ni la politique ne lui imposent I'obligation d'etre le gardien de la fidelite que les sujets anglais peuvent devoir a leur souverain. II suffit pour la justification de S. M., que les colonies, qui ferment une nation considerable tant par le nombre de leurs habitants que par I'^tendue de leurs domaines, aient etabli leur inde- pendance, non-seulement par un acte solennel, mais aussi par le fait, et qu'elles I'aient maintenue centre les efibrts de leur mere-patrie. Telle etait en efiet la position des Etats-Unis, lorsque le roi a commence a negocier avec eux. S. M. avait 25 iiue entlere liberie de les regarder ou comme independants ou comme sujets de la Grande-Bretagne. Elle a clioisi le premier parti, parce que sa surete, I'interet de ses peuples, la politique invariable et surtout les projets secrets de la cour de Londres, lui en imposaient imperieusement I'obligation. On demande, s'il est un souverain, qui, dans la meme posi- tion que S. M., n'aurait pas imite son exemple ?" — {Causes Celehres, p. 240.) Finally, the French Government stated its case in four propositions : — " /. Que le droit des gens, la politique et V exemple tneme de V Angleterre autorisaient le roi d regarder les Americains comme independants de fait, des Vepoque du 4 Juillet 1776; et qu'il a pu lefaire a plus forte raison, d celle du 6 Fevrier 1778. " II. Qu'en les regardant comme tels, et en formant des liai- sons avec eux sous cette qualification, il n'a viole ni les traites ni les droits des soiwerains. " III. Qu'en traitant avec eux, il ne s'est point rendu cou- pahle de perfidie. "IV. Que le traite conclu avec le congres, n'est pas nne offense pour I' Angleterre ; que par consequent I'acte, par lequel, il a ete denonce a cette puissance, n'etait point une declaration de guerre i."—(a C, pp. 244, 245.) The English Government, in a celebrated State-paper composed by the historian Gibbon ^ justified its resort to hostihties, not by demurring to the principles laid down by M. de Vergennes, but by traversing his averments of fact. It affirmed that the suppUes of arms, ammuni- ' Expose des motifs de la conduite du roi de France reJativement a r Angleterre, en 1779; Observations de la Cour de Versailles sur le Memoirs Jwstificatif de la Cour de Londres. Both in Mar- tens, C. C, vol. iii. ed. 1859. J The Memoire Justificatif was written in French by Gibbou, at the request of Lord "Weymouth, then Secretary of State. He was furnished with the correspondence of Lord Stormont, and "spoke," he says, "as a lawyer from his brief." Gibbon's Misc. Works, i. 156. 26 tion, and trained officers which had been sent from France to America, — "succours so considerable, so pub- lic, so long sustained," — could not be regarded as the mere speculations of private enterprise, and that the Government of Erance was responsible for acts of hos- tility which would have been impossible without its en- couragement and connivance ; that the French ports had been suffered to become nests of privateers, commis- sioned by the American delegates at Paris and else- where ; and that the signature of the treaty of aUiance was tantamount to a declaration of war. The discussion of the abstract proposition that foreign Powers may law- fully recognise as a fact the fact of an acquired indepen- dence, is with some dexterity avoided, and the publicist ventures no nearer to a denial of it than the cautious affirmation that if a revolted people seeks the alliance of foreigners in order to support its pretended independence, then to accept its overtures, ratify its usurpations, and recognise it as independent, is to concede the legitimacy of its title. The Court of Versailles is commended for having, at the commencement of the war, made the "wise and modest" declaration that it would be no judge of the merits of the quarrel, and blamed only for having subsequently thrown that principle aside, and adopted in its stead the "novel, false, and dangerous maxim" that a foreign prince may assume jurisdiction in disputes which arise witliin the bosom of a sovereign and independent State. The question of fact, which alone was really in issue between the two Governments, is now of no importance, and I shall refrain from entering into it, especially as it was long ago placed beyond the reach of discussion by some passages which I am about to read to you from the "Memoirs of Franklin," composed by his grandson, 27 William Temple Franklin, who accompanied him to France, acted during the whole of his residence there as his secretary, and had access therefore to the best sources of information '^. The conduct of France in this alBPair was, without doubt, false and unscrupulous in the highest degree; but this does not destroy the value of her State-papers. Men's acts, not their words, shew what they are ; their words, not their acts, shew what they would fain appear to be, and what they conceive to be the opinions current around them. Indeed, the greater the discrepancy and the more unblushing the pretence, the clearer in some sort is the testimony which the pretender bears against himself. In the French manifesto we see what at that time was the current opinion of Europe on this subject, and the rule to which, externally, the French Court was desirous to conform ; while this rule and opinion are con- firmed by the fact that the English Government, though interested in disputing them, did not seriously attempt to do so, but laid the whole stress of its argument on other grounds. '' See Note A at the end of this Lecture. " The commissions issued by the diplomatic agents of the United States in France during our revolutionary war were granted with the knowledge and consent of the French G-overnment." (Official Eeport of Secretary Adams, transmitted to Congress by President Monroe, Jan. 29, 1818.) See also the letter of M. de Vergennes to the King, May 2, 1776, (two months before the Declaration of In. dependence,) applying for 1,000,000 fr. '■'■pour le service des co- lonies Anglaises," and explaining the precautious adopted to se- cure secrecy and give it the appearance of a private transaction. Martens, C. C, iii. 149. " Cette piece importance," says M. de Flassan, gently, (Histoire de la Diplomatie Frangaise, vii. 151,) " semble en contradiction avec las principes moraux de M. de Vergennes." 28 The English Memoire, to which reference has been made, contained one prophetic sentence : — "Les ministres du roi Tres-Chretien s'apercevront peut- etre un jour, que rambition leur a fait oublier les interets et les droits de tous les souverains. L'approbation que la cour de Versailles vient de donner a la revolte des colonies an- glaises, ne lui permettrait pas de blamer le souleveraent de ses propres sujets dans le Nouveau-Monde ou de ceux de I'Espague, qui auraient des motifs bien plus puissants pour suivre le meme exeraple, s'ils n'en etaient point detournes par la vue des calamites, dans lesquelles ces malheureuses colonies se sont precipitees." — {C. C, p. 216.) Within the compass of a short lifetime this prediction was substantially verified, and the French Court was found united with the Spanish in expostulating against the recognition by England of the revolted colonies of Spain. The revolt of the Spanish American colonies began in 1810, upon the dissolution of the Supreme Junta at Seville, the colonists refusing obedience to the phantom regency by which it was succeeded. In the long, confused story of bloody and desultory civil war which extends over the ensuing ten or twelve years, there is no event important enough to deserve a date. When Buenos Ayres, in 1816, threw off her nominal allegiance to the Spanish Crown, the royal authority had been nearly re-established in Venezuela, was dominant in Mexico, and undisturbed in Peru ; but the provinces of the Rio de la Plata were long before that time prac- tically independent, and secure, except from domestic dissensions. And Sir J. Mackintosh was able to affirm in 1824 that in a country whose Pacific shore was equal in length to the whole African coast from the Cape to Gibraltar, and where the Spanish language was spoken over a line of nearly 6,000 miles, Spain retained nothing 29 but a castle in Mexico, an island on the coast of Chili, and a small array in Peru. Upon the destruction of the Spanish monopoly a most active trade had sprung up, chiefly with Great Britain, and British capital was poured profusely into countries whose capabilities were estimated by their size, to feed public works and private speculations. On the restoration of Ferdinand VII., the question naturally arose how this state of things was to be dealt with. Encouraged perhaps by Mr. Dundas's despatch to Sir T. Picton in 1797, the colonists at the first outbreak of the revolt had turned their eyes towards this country, and Lord Liverpool, in a despatch to the British governor of Curagoa, (June 29th, 1810,) had instructed him that, Spain remaining Spanish, " His Majesty's Government must discourage every step tend- ing to separate the colonies from the mother country in Europe," but would assist their emancipation should Spain become French. For a time, and for a short time, Spain was French. The mediation of England was afterwards solicited more than once by the Spanish Government, more than once offered, but never actually employed. The English Government, however, en- gaged by treaty in 1814 to observe a strict neutrality, which was enforced three years afterwards by a royal proclamation j and as a more effectual security, the Fo- reign Enlistment Act now in force was introduced into the Statute-book, after a warm and not very creditable resistance from Mackintosh and the Whigs ^ A Navi- gation Act, passed in 1822, permitted the importation of articles, the produce of countries which had formerly ' The author of Outlines of tJie Bevolution in Spanish Ame- rica; hy a South American, London, 1817, complains that the agents sent to London up to that time could not even obtain an interview. 30 belonged to Spain, in the ships of those countries, thereby virtually recognising their commercial flag. And in July of the same year Spain received from Lord Castlereagh, through her minister in London, an explicit vrarning — " That so large a portion of the world could not, without fundamentally disturbing the intercourse of civilized society, long continue without some recognised and established rela- tions ; and that the State which neither by its councils nor by its arms could effectually assert its own rights over its dependencies, so as to force obedience, and thus make it- self responsible for maintaining their relations with foreign Powers, must sooner or later be prepared to see those rela- tions establish themselves, from the overruling necessity of the case, under some other form." In the ensuing December, Lord Castlereagh having in the meanwhile been replaced by Mr. Canning, she was further informed that consuls would shortly be sent to certain specified places in Spanish America, for the protection of British trade ; and these consuls were actually despatched about the end of 1823, com- missioners being at the same time sent to Columbia and Mexico to inquire into and report upon the poli- tical situation of those countries. On the 1st Feb., 1824, Mr. Canning read to all the Foreign Ministers in London a despatch addressed to Spain, in answer to a proposal which that Power had made to submit the question to a European Congress. "The British Government," said the despatch, " was decidedly of opinion that the recognition of such of the new States as had established, de facto, their separate political ex- istence, could not be much longer delayed." This an- nouncement was accompanied by a promise that, when Great Britain should determine to take her own course, Spain should receive an early intimation of it, and with 31 an offer to mediate between her and her colonies on the basis of their complete independence. The offer was refused, and Spain was then informed that " His Ma- jesty would at his own time take such steps as he might think proper in respect of the States of Spanish America without further reference to the Court of Madrid, but without any feeling of alienation from that Court, or of hostility to the real interests of Spain." Six months afterwards this warning was acted upon, the British consul in Buenos Ayres being empowered to conclude a commercial treaty with that Government, provided it continued, when the despatches arrived, to afford the same reasonable prospect of stability as it appeared by the reports received to do when the despatches were sent off; and within another six months similar powers and instructions were sent to Columbia and Mexico. In November, 1825, ministers plenipotentiary were ap- pointed to Columbia and Buenos Ayres, (the terms of the treaty with Mexico not being finally settled,) and ministers from those countries were received by the King^ This famous transaction, — made famous by the time over which it extended, the heartburnings it created, the discussions it underwent in State-papers, in Minis- terial conferences, and in Parliament, and more than all, perhaps, by the clear, forcible, and luminous exposition it received from two eloquent men. Sir J. Mackintosh and Mr. Canning, — was entangled throughout, at every step of its progress, in the complicated web of English and European politics, from which it is necessary to extricate it before it can be considered in its relation to inter- " This reception is particularly described in Stapleton's Poli- tical Life of Mr. Canning, from winch the foregoing outline has been chiefly taken. 32 national law. It has in fact three aspects, and three histories — it is a part of the political history of Eng- land during Lord Liverpool's administration ; a part of the political history of Europe during the same period ; and a part of the history of the law of nations. With the first of these — with the use made of the question by the Whig Opposition, the Petition of the London merchants, the debates in Parliament, the dissensions in the Cabinet, the reluctance and resistance of the King, we have nothing to do ; and with the second we are concerned only so far as it helps to throw light upon the third. The motives which urged on the recognition may be divided into two kinds, the one direct and proper to the matter in hand, the other indirect and improper. As I have said before. Great Britain carried on with the Spanish American States a large trade and intercourse, a thing which she had a perfect right to do. Trade and intercourse, however, cannot be carried on for any length of time without the protection of some recog- nised and efficient authority. " All political communi- ties," wrote ]\Ir. Canning to Zea Bermudez, the Spanish minister, — "All political communities are responsible to other poli- tical communities for their conduct ; that is, the}^ are bound to perform the ordinary international duties, or to afford re- dress for any violation of the rights of others by their citizens or subjects. Now, either the mother-country must have con- tinued responsible for acts over which she could no longer exercise the shadow of a control ; or the inhabitants of those countries, whose independent political existence was in fact established, but to whom the acknowledgment of that inde- pendence was denied, must have been placed in a situation in which they were really irresponsible for all their actions, or were to be visited for such of those actions as might fur- nish ground for complaint to other nations vrith the punish- 33 ment due to pirates and outlaws. If tlie former of tliose alternatives, the total irresponsibility of unrecognised States, were too absurd to be acknowledged, and the latter too mon- strous to be applied for an indefinite length of time to a large portion of the habitable globe, no other choice remained for Great Britain, or for any countrj^ having intercourse with the Spanish American provinces, than to recognise in due time their political existence as States, and thus bring them within the pale of those rights and duties which civilized nations are bound mutually to respect, and entitled recipro- cally to claim from each other." The direct and proper motive, then, was the indis- pensable necessity for some recognised and efficient authority, responsible for the redress of grievances ancl accessible through the usual diplomatic channels, to pro- tect the rights and discharge the duties of these young communities, — rights which flowed from their indepen- dence, duties which were the fruit of their legitimate^ intercourse with other nations. The motives which I take leave to call indirect and improper, sprung out of the fluctuating and shifting politics of Europe. Whilst Spain was still in the grasp of Napoleon, the complete emancipation of her colonics would naturally be a de- sirable object to the English Government. After the restoration of the Bourbons, and until it was clear that Spain was invincibly unreasonable, we desired a recon- ciliation. Pending the Congress of Verona, and whilst a French army, the instrument of the Holy Alliance, was invading the country, it seemed ungenerous as well as unwise to take any step which might increase, even in semblance, her weakness and her embarrassments ; and this circumstance actually delayed for nearly a twelvemonth the despatch of consuls to the Spanish American ports; and the final determination to recog- nise Columbia and Mexico was hastened by the refusal D 34 of the French Government, in December, 1824, of satis- factory explanations respecting its continued occupation of the Spanish fortresses. It was, and it was felt and intended to be, a blow to the system of Metternich, a final rupture with the Holy Alliance, and a counter- poise to the short-lived victories which absolutism had obtained in Europe. No passage of Mr. Canning's life better illustrates both his cleverness and his restless and ingenuous vanity, than the achievement which he describes as having " called a new world into existence to redress the balance of the old," Could the author of that sparkling gasconade have forecast what the New World, which he did not call into existence, would be — could he have seen the Peru of 1861, and Spain herself admitted to take part with England and France in an expedition against Mexico, he would hardly have left such a boast to posterity. Yet, irregular and capri- cious, to say the least, as these motives were, they did not prevent the conduct of Great Britain in this matter from being marked by a deliberation and forbearance, a considerate and indulgent tenderness not only for the rights of Spain, but for her interests and feelings, her pride, obstinacy, and weakness, which to my mind form the chief feature in this history. The United States, like England, from the first de- clared themselves neutral. This is the burthen of every President's Message from 1817 to 1823, and we have seen how the declaration was understood and seconded by the Supreme Court. They preceded us in passing a Foreign Enlistment Act. They insisted at the same time on a stringent interpretation of the law of blockade. A blockade, to be valid, must be confined (they said) to particular ports, and not extend over a coast of several hundred miles, and it must be maintained by a stationary^ iJ5 not a cruising squadron ". But their sympathies, natu- rally enough, were with the revolted colonies ; and be- tween their general attitude and that of England there was a broad and, as Mr. Rush expressed it, a funda- mental difference. The Buenos Ayres commercial flag, with those of the other provinces, was promptly admitted, notwithstanding the remonstrances of Spain. In 1818 Mr. Adams begged to assure the agent of Buenos Ayres at Washington of his readiness to recognise its Govern- ment so soon as it could be done with advantage to the interests of South America, as well as of the United States. In the same year Mr. Bush, pursuant to his instructions, flatly declined, in an interview with Lord Castlereagh, of which the American has left us a circum- stantial account, to take part in promoting any settle- ment except on the one basis of independence. " The desire of my Government was, that the colonies should be absolutely emancipated from the parent State The policy of the United States could not have been different. They owed it to the actual position of the colonies, to their future destinies, to the cause of human liberty in the new hemisphere °." American consuls were sent thither some time before English ones ; and in 1823, two years before England, Mr. Monroe took the final step of a formal recognition. We may pass over as unimportant the case of Brazil, the peaceable separation of which was effected under British mediation in 1825, and we need not linger over a larger and more fertile subject of controversy, the Greek war. The character and circumstances of this war, and the " American State Papers, xi. 473, 475 ; President Mom-oe's Message, 1822. ° Basil's Residence at the Court of London, pp. 184, 295. D 2 36 feelings it excited, were enough to overbear altogether the authority of rule and precedent. It seems to be a general law that in affairs in which the Porte is con- cerned no European Power can for any length of time be mistress of its own policy. I ought perhaps — though I am not sure of it — to say, no European Power but one. The ordinary embarrassments of a blind and in- triguing policy were increased, in this case, by a vague but impetuous sentiment of sympathy and indignation ; and there is no chapter of political history more obscure, perplexed, and unsatisfactory, than that which ends with the nomination of a Bavarian schoolboy to the throne of Greece, and the leading parts in which were played by Russia, Austria, and Great Britain. The justification of- fered for the intervention of Navarino was, that on account of the protracted length of the struggle, the intolerable evils it occasioned to neutral nations, the horrible barba- rities perpetrated and threatened, it could no longer be regarded simply as an ordinary civil war. As a civil war, however, England had been content to regard it up to that time, and she had maintained a pretty strict neu- trality, whilst conceding to each party the common belli- gerent rights. She recognised, on the one hand, not- withstanding the expostulations of the Porte, blockades declared by the Greeks, (which Prance refused to do) ; whilst British officers, on the other, were recalled from serving in the Greek ranks ; and during the siege of Missolonghi two proclamations were issued, one resem- bling that which we have lately read, citing the Foreign Enlistment Act, and prohibiting all infractions of it ; the other forbidding for six months the export of munitions of war from any port in the United Kingdom. The one thing which the Government refused to do was to under- take a useless and hopeless struggle against public opi- 37 nion, by prosecuting those who provided the insurgents with money. The Court of Common Pleas justly held these loans illegal p, but it is not every illegal act which can or ought to be punished as a misdemeanour. Passing over rather more than twenty years, we will take one other case, supplied by a kingdom which has since disappeared from the map of Europe. On Jan. 12, 184S, an insurrection broke out in Sicily, and rapidly mastered the whole island, except the citadel of Messina. Prom the beginning of May till the end of August there was a suspension of arms. A powerful force was then despatched from Naples for the re-conquest of the island; the town of Messina was bombarded and re- taken, and immediately afterwards Admiral Baudin in- duced Sir W. Parker to join him in stopping, by a menace of intervention, the progress of the Royal arms. This proceeding, which was excused rather than justified by the plea of humanity, led to an enforced cessation of hostilities, during which active but fruitless ex- ertions were made to effect an accommodation. It was not till the end of March, 1849, that the two admirals abandoned their endeavours, and left General Filangieri free to pursue his conquests, which he did so effectually, that by April 22, within little more than three weeks, he was undisputed master of Sicily. The British Government of that day, like Lord Liver- pool in 1810, and Lord Castlereagh in 1818, — indeed, like every Government, of whatever colour, which has succeeded in its turn to the traditions of the Poreign Office, — desired to maintain, if possible, the existing state of territorial possession. Should that prove hopeless, they wished to prevent the spread of revolution and the overthrow of monarchical institutions, and in any case P De Wiitz V. Hendriks, 9 Moore's C. P. Reports, 587. 38 to keep alive the influence of Great Britain, protect her interests, and preserve her political connexions. To bring about a reconciliation between the king and his revolted subjects on such terms as would afford them some adequate protection from oppression and mis- government, was the first aim of Lord Palmerston, and of the agents (including Lord Minto) by whom he was more busily than wisely seconded. Failing in that, he was ready to recognise any prince who might be invited to seat himself on the vacant throne. He was a little uneasy lest England should be outstripped by the French Republic in the good graces of the Sicilians, and he had a firm but mistaken conviction that the notion of a re- conquest was chimerical. This mistake, coupled with the anxiety to keep pace with France, and assisted perhaps by the importunities of Lord Normanby and Lord Minto, (who, partly to discourage republicanism, partly in order to secure for Great Britain such com- mercial advantages as might be expected from the friend- ship and gratitude of the Sicilians, repeatedly pressed for a prompt recognition of the insurgent government,) led to some acts which were certainly difficult to re- concile, I will not say with the law, but with the com- mon mutual courtesies of nations. The famous despatch to Mr. Abercromby, May 8, 1848, which prematurely pledged this country to ac- knowledge as King of Sicily " at the proper time, and when he should be in possession of the throne," a prince who had not accepted, and in fact never did accept, that illusory dignity, proceeded on the expressed as- sumption, that Ferdinand the Second was unable to subjugate his revolted province, and that the substi- tution of the Duke of Genoa was the next best arrange- ment for the general interests of Europe. On July 11, 39 the French and English squadrons, in obedience to orders from home, formally sainted the Sicilian flag. But these compliments and encouraging assurances, which sprang from a short-lived misconception, and were designed to promote an abortive object, were all that the Sicilians really obtained in the way of recognition from the two great Powers of the West. They in vain, in the month of April, despatched four commissioners to negotiate for a more formal and complete acknowledgment at London and Paris, These emissaries obtained audience in Lon- don of Lord Palmerston, and in Paris of M. de Lamar- tiiie, received in both places assurances of an early official recognition, and were admitted, by the Prench Government at least, to transact business informally. But they were told "that as Prance itself, from not having definitively organized its political state, nor ar- ranged the code by which it was to be governed, had not then been diplomatically recognised by the other European powers, so the Government of the Republic could not recognise the Government of Sicily diplo- matically and officially, until the provisional state should cease, and the Sicilians should have arranged their laws and elected their king." An application made in June to the English Government by a respectable Sicilian resident in Malta, who had been appointed consul by the Provisional Government, to be received in that ca- pacity, was declined, although he was " allowed to act so that commercial inconvenience might be prevented." And Sicilian vessels in the port of London were obliged to have recourse to the protection of the Sardinian consul until Pebruary, 1849, when that assistance was withdrawn, and a despatch from Gioberti on the subject elicited only the dry response that " no officers of the British Government in the United Kingdom can perform 40 consular functions for foreign vessels arriving at or de- parting from a British port." The permission, inad- vertently given, to return some guns out of the Ord- nance stores, expressly for the use of the insurgents, was cancelled, and the offence repaired by an honourable apology. And Mr. Temple and M. de Rayneval, in their last fruitless effort at reconciliation, (March 20, 1849,) did not hesitate to declare that King Ferdinand " navait jamais cesse aiioc yeux de leurs Goucernements respectifs d'etre le souverain legitime de la nation Sicilienne '^." 1 In the House of Commons, April 20, 1849, Mr. Bankes asked " When it was that the insurgents of Sicily were first re- cognised by the Government of Great Britain as ' the Sicilian Government ?' " Viscount Palmerston said : — " With regard to the second question, I have to state that the existence of the Government of Sicily, acting in and administering the affairs of that island, was acknowledged by Her Majesty's Government as early as the beginning of last year, when, at the request of the King of Naples, the Earl of Minto placed himself in communication with that Government for the purpose of effecting an amicable settle- ment of the differences between them. We recognise that which is ; and though the Hon. Gentleman may shut his eyes to the fact, it is a fact to which the Government of Naples have not been able to shut theirs " Mr. Bankes. — Am I to understand that the Government now recognise the Sicilian Government as separate from the Govern- ment of the King of Naples ?" "Viscount Palmerston. — Her Majesty's Government acknow- ledge the fact that there is in Sicily a Government administering the affairs of Sicily. It is a Government de facto : it is impos- sible for the Hon. Gentleman or anybody else to deny that." — Hansard, civ. 538. The question was parried (as from its form it deserved to be), not answered. I subjoin, as bearing on these transactions, some contemporary events, with their dates : — 41 I have just referred to a time when revohitions swept over Europe like thunder-storms, as violent, as transient, and almost as wayward in their course. Another in- cident, which belongs to the same period, may be men- tioned here. At the end of 1848 a civil war broke out in Hungary, and President Taylor in his Message for 1849 informed the American Congress that some "faint prospect" having shewn itself that the Hungarian people might become independent, he had deemed it his duty, in accordance with the popular feeling, " to stand pre- pared, upon the establishment by her of a permanent Government, to be the first to welcome independent Hungary into the family of nations. . . . For this pur- pose I invested an agent then in Europe with power to declare our willingness promptly to recognise her in- dependence in the event of her ability to sustain it." Nothing can be more undignified, as it seems to me, than this officious haste in saluting a " faint prospect," nothing more contrary to principle or more justly offen- sive than a recognition by anticipation, proffered not when the struggle is virtually over, or even far ad- vanced, but before it has well begun. At Washington, however, they thought, and doubtless still think, very differently ; and the President's policy was defended by Mr. Webster, then Secretary of State, in an elaborate diplomatic note, as " warranted by the law of nations, and agreeable to the usage of civilized states." This * 1848. Feb. 24. Revolution in France and flight of Louis Philippe. ,, March 23. Eadetzky compelled to evacuate Milan. ,, Aug. 10. Charles Albert driven out of Lombardy. ,, Nov. 15. Murder of Rossi. ,, Dec. 10. Louis Napoleon elected President of tlie French Republic. 1849. March 20. Charles Albert defeated at Novara. 42 policy, he subsequently declared, was " fixed and fastened upon the United States by their character, their history, and their position among the nations of the world, and would not be abandoned or departed from until some extraordinary change should take place in the general current of human affairs^." The general current of human affairs, let us venture to hope, has not yet de- serted its ancient channel ^ If we consider the series of cases we have just gone through, and attend to their points of resemblance and difference, we shall have no difficulty in tracing through- out them a rule pretty uniformly acknowledged, though very variously applied — a rule flowing directly from the fundamental principles of international law, and con- firmed by practice. The question has always been, not whether the parties to a civil war might be treated as belligerents, but whether rebellion had in fact become civil war; not whether acquired independence was a title to recognition, but whether independence had really been acquired or no. Eunning through every dispute and present to the mind of every disputant, though not always clearly drawn, we see the distinction between considerations of strict right, which attach themselves to the rule, and fasten upon it the character of a laiOy and "■ Wheaton's 'Elements, by Lawrence, p. 35, note. ° As recently as Oct. 1860, the Government of the United States recalled its minister, Mr. Eandolpli Clay, from Lima, because tlie Peruvian Government refused c#mpensation for two American ships (the Georgiana and the Lizzy Thompson) which had been captured whilst engaged in a prohibited traffic (the guano trade), with clearances from an insurrectionary Government esta- blished at Arequipa in Southern Peru. {Annuaire des Deux Mondes, 1860, p. 681.) But I believe that this claim has not been pressed since it became apparent that it might prove an inconvenient precedent. 43 considerations of courtesy, forbearance, decorum, pru- dence, seasonableness, customary observance, and the like, which regard merely the application of the rule. In this point of view, the distinction I am speaking of may serve as an illustration (though it is very far from being the most forcible that could be chosen) of what we mean when we say that the law of nations as it now exists is not a body of mere customs or mere opinions, (which in themselves and as such cannot create rights,) but is something more. I have said that the distinction has' not always been clearly drawn, for it is not always a litigant's interest to be clear, even when passion suffers him to be so. But I need not enlarge on its practical importance. Who does not see how good it is at this moment for the peace of the world, and for the mutual respect of nations, that there is a positive rule to appeal to which cannot be gainsaid, an element of discussion (should discussion arise) settled, stable, permanent, ca- pable of being separated from what is occasional and temporary — how it serves as a guide to one party, and as a restraint to the other ? Who can fail to see how much such a restraint is needed ? Of all the trying and painful situations through which a people can be con- demned to pass, there is none perhaps which has such a tendency to render the sufferer irritable, inconsistent, unreasonable, as a successful revolt. When foreign con- quest tears away a province, it is a heavy misfortune, but it is the fortune of war ; but the bitterness of a family quarrel, pushed to the last extremity, rouses the passions more effectually, and excites intenser resent- ment, and an acuter sense of wrong. The Americans of the North feel themselves to be fighting not for a pro- vince, or for half-a-dozen provinces ; not for the Mis- sissippi and that one spot on the surface of the globe of 44 whicli Jefferson said that the alien possessor, be he who he might, must be regarded by the United States as their natural foe, (I mean the outlet of the Mississippi, New Orleans) ; not even for the boundless and fertile West, which, sooner or later, must go with the great river ; not for these things only, but for the very exist- ence of their country, for its grandeur, its security, the many present advantages, and the almost illimitable ex- pectations which were the birthright of the American citizen. Well, there have been others before them who have struggled against similar sacrifices, and have strug- gled in vain. But that is no consolation to them. And so he, who has ever piqued himself on sympathizing with revolt all over the world, (except the revolt of the coloured against the white man,) now knows not how to par- don the faintest symptom of an inclination even to give a fair hearing to the South; he who would have most angrily resented the least interference in his domestic politics, is angry that foreigners should stand neutral in a quarrel which he is proclaiming with the same breath to be a purely domestic matter; he whose first axiom has been that no Government could be just which was not founded on consent, now clings with all the tenacity of the veriest despot to the forcible maintenance of a sovereignty against which millions rebel. The Ame- rican, however, in his heat and inconsistency, feels only what any man would feel in his situation who loved his country and had warm blood in his veins ; only he feels it more acutely, and expresses it more violently, because it is an infirmity of his national character to be irritable and overbearing. Two opposite inferences may be drawn from this. Some may say that in a matter confessedly requiring so much tenderness and ch'cumspection the hands of 45 every foreign Government ought to be as free as pos- sible, and its course guided entirely by circumstances ; and that the dictum (always a favourite with statesmen) that the time and mode of recognition are a mere ques- tion of prudence and policy, should receive the largest and most liberal construction. By others it may be argued that under this treatment the rule itself disappears, with all its advantages ; that all the controversies to which these cases give rise, spring up in the debatable ground which surrounds the rule ; and that to enlarge that field of strife, at the expense of the rule itself, can only multiply disputes. This view appears to me, I own, to be the nearer to the truth. That a pretty wide dis- cretion must alw^ays be left to the recognising Power, there is no doubt ; for this, if for no other reason, that the rule itself is vague, and that not merely from the imperfection of language, but because it must always be impossible to determine at what precise point of time a State has consolidated itself and independence has actually been achieved. There is room also for an infinite variety of circumstances. Ten months may effect in one case what ten years are too little to accom- plish in another. A great military reverse, like that of Saratoga or Ayacucho, may or may not be a legitimate argument — it is generally a suspicious one. The tie of national union, according to its strength and texture, may snap like lighted tow, or give way slowly and pain- fully, like the sinews and fibres of a living frame. Again, it is true, of course, that nations will always listen, as men do, to every consideration which seems to bear upon their interests, and that in their dealings with each other, as in private affairs, there are no laws so strict, no rights so imperative, but that the use of them may be directed by prudence and softened by courtesy and forbearance. 46 But it is one thing to admit this reasonable latitude and unavoidable uncertainty, and another to let in every ima- ginable motive and transient scheme of policy, and so reduce the act of recognition from an exercise of a right, to which no one can object apart from considerations of time and circumstance, to an arbitrary exertion of the vrill, with which anybody is free to quarrel. It is one thing to say to a sore and resentful people, ' We recog- nise the independence of a country that once was yours, because it is independent, because justice and general convenience require it,' — nay, (if you will have it so,) * because, having a causa jtistijicativa in the fact that it is free, we have a causa suasoria in the want of cotton ;' and another to say (whether in so many words or not) we recognise because it will assist the cause of liberty or of authority, because it will promote or check re- publicanism, because the wind in our hemisphere sets this way or that, because we have a rival to outstrip or counteract, or for any other temporary reason that may suggest itself to a too alert and sagacious statesman with his eye on the weathercock and every facility for waiting telegrams. One word in conclusion. It has been my object in this lecture, not to defend the acts of the Queen's Go- vernment, but to illustrate a section of International Law. Yet I know not why I should refrain from say- ing that there never was a case in which an English Government (as it seems to me) stood less in need of an apology. Scrupulously neutral, and studious to avoid offence, we have even exceeded (but very wisely) the strict obligations of neutrality ^ by prohibiting both the * A neutral power is at liberty either to admit or to exclude belligerent ships, whether cruisers or privateers, or to admit the one and not the other, and either to grant or refuse them permia- 47 public and private ships of either belligerent from bring- ing prizes into our ports. We have made no public sion to bring in prizes, and to allow or prohibit the sale of prizes brought in, after condemnation by a court of the captor, (or, per- haps, as a provisional measure, before condemnation) ; but the condemnation of a prize by a court sitting in a neutral port is in- valid, and for the neutral power to authorize the establishment of such a court would be a breach of neutrality. " The absence of a positive prohibition implies a permission to enter the neutral ports for these purposes." ("Wheatou, ^l., 498.) " II est generale- ment admis que les prises maritimes validees par jugemeut defi- nitif peuvent etre vendues dans les ports neutres." (Ortolan, Biplo- matie de la Mer, ii. 274.) To grant any of these advantages to one belligerent and deny them to the other would be a departure from the principle of neutrality, unless this were done in pursu- ance of a treaty made before the war. Such treaties have been held to apply to the case of a civil war, (the " Bello Corrunes," Wheaton's ^ep., vi. 152). The treaty of 1794 between Great Britain and the United States contained clauses under which, on the one hand, American cruisers and privateers were to be admitted with their prizes into English ports, and " to be at liberty to hoist sail and depart as speedily as may be, and carry their prizes to the place mentioned in their commissions or patents" — while on the other, it was not to be lawful for "any foreign privateers, not being subjects or citizens of either of the said parties, who have commissions from any other prince or State in enmity with either nation, to arm their ships in the ports of either of the said parties, nor to sell what they have taken, nor in any other manner to exchange the same, nor shall they be allowed to purchase more provisions than shall be necessary for their going to the nearest port of that prince or State from whom they obtained their commissions." And " no shelter or refuge shall be given in their ports to such as shall have made a prize upon the subjects or citizens of either of the said parties ; but if forced by stress of weather, or by the dangers of the sea, to enter therein, particular care shall be taken to hasten their departure, and to cause them to retire as soon as possible." (Arts. 24, 25.) These articles were to continue in force for twelve years. The 48 protest against a blockade of an immense range of coast, very loosely maintained. The only complaint that has been made against us, is the peevish one of having pro- claimed our neutrality too early. I think it was not an hour too early. England is not Russia. Her West Indian Colonies lie in close neighbourhood to the theatre of war; a crowded thoroughfare runs from Liverpool to New York, and we have distant settlements scat- tered over the globe, to one of which (if we may believe the newspapers) blank letters of marque from the Con- federate States found their way even before the arrival whole treaty was made void by the war of 1812, and the stipula- tions above mentioned were not renewed in 1815. The treaty be- tween the United States and France (Feb. 6, 1778,) had contained clauses substantially the same. This treaty was " annulled " by Act of Congress in 1798. The 25th Art. of the French Treaty of Sept. 30, 1800, is similar to Art. 24 (respecting privateers) of the British Treaty of 1794. The article stipulating for the admission of armed ships with their prizes, was modified so as not to involve a positive engagement to admit them, and the prohibition against admitting prizes taken from the United States was omitted alto- gether. The French Orclonnance de la Marine of 1681, following a previous regulation of Feb, 1, 1650, prohibited any prizes taken by a foreign ship from remaining in a French port more than twenty-four hours, except on account of stress ot" weather. In the present war, the British Government has interdicted " the armed ships and also the privateers" of both parties from carrying prizes into the ports of Great Britain or her Colonies. {Lord J. RusselFs Letter, June 1, 1861.) The French Government, by a declaration published June 11, 1861, declares that " (1.) no vessel of war or privateer of either of the belligerent parties will be allowed to enter or stay with prizes in our ports or roadsteads longer than twenty-four hours, except in case of relache forcee. (2.) No sale of goods belonging to prizes is allowed in our ports or roadsteads." The regulations publislied by the different powers which re- mained neutral during the war of 1854 are stated in Ortolan, ii. App. viii. ; De Cussy, Droit Maritime, i. 211. 49 of the Proclamation. But if England had had no more connection than Russia has with American affairs, it would not have been too soon for her to declare her neutrality five months after the commencement of the revolt ; three months after a group of six Southern States in convention assembled had established a re- gular constitution ; one month after the bombardment of Fort Sumter; and at a time when 75,000 men had been called out on one side, and an army of scarcely inferior force on the other, when an Act " recognising the existence of war" and authorizing general reprisals had been passed by the Southern Congress, and when the President of the Confederacy had begun to commission privateers, and the President of the Union had announced a blockade. The characteristic feature of this contest is the extraordinary rapidity of its growth, discontent bursting all at once into revolt, revolt gathering a po- pulation of I know not how many millions under its standard, insurrection swelling instantaneously into war. The discontent had been long nourished ; and when the rupture took place, the State Governments, already su- preme in all local matters, —that is to say, in nineteen- twentieths of the whole sum of public business, — were able, by merely combining, to organize a regular legis- lature and administration, and to set up at Richmond a President and a Congress looking like a spectral coun- terpart (so close is the resemblance) of the President and Congress at Washington. Of the two questions which every revolted people soliciting recognition must be prepared to answer — Have you a Government of your own ? and. Is it independent of any other ? — the first is answered already. The Confederate States have a Government, new indeed, and made somewhat pre- carious by the very principle on which it has been £ 50 founded, but yet a Government, whilst they are still engaged in a doubtful struggle for independence. A revolt from a Federal Government is indeed pretty sure to differ from all other revolts, if in nothing else, in the greater rapidity of the process of separation. There is less to pull down, and less to build up. It is a differ- ence, not in principle, but in fact; and the whole ques-" tion in these cases is a question of fact. All Souls' College, Nov. 1, 1861. NOTE A. Extracts from the Ilemoirs of the Life and Writings of Ben- jamin Franklin, by his Grandson, William Temple Franklin. London, 1818. Vol. ii. " Amebican paper-money beginning about this time to fall into disi-epute, and immediate supplies of arms and ammunition for the use of the army being absolutely necessary, Congress turned their attention to Europe, and to France in particular, for the purpose of obtaining aids in money and military stores as the only means of resisting the power of Great Britain, and preserving their newly-acquired independence. In the latter end of 1776 a Com- mission was appointed for this object, and Dr. Franklin, though then in his seventy-first year, was considered, from his talents as a statesman and reputation as a philosopher, the most suitable person to effect the desired end, and was consequently nominated Commissioner Plenipotentiary to the Court of France, in conjunc- tion with Silas Deane and Arthur Lee, Esqrs. The former had already been sent to Europe for the purpose of secretly obtaining and forwarding warlike stores, &c., and the other had been em- ployed by Congress as a p'rivate and confidential agent in Eng- land."— (p. 42.) " Dr. Franklin wa.^ privately received, with every demonstration of regard and respect, by the Minister for Foreign Afl'airs, M. le Comte de Vergennes, who assured him and the other American Commissioners that they should personally enjoy in France " toute la surete et tons les agrements que nous y faisous eprouver aux etrangers. ... " A conviction of the advantages to be derived from a commercial intercourse with America, and a desire of weakening the British empire by dismembering it, induced the French Court secretly to give assistance in military stores to the Americans, and to listen to proposals of an alliance. But they at first shewed rather a reluctance to the latter measure, which however by Dr. Franklin's address, aided by a subsequent success attending the American arms, was eventually overcome. " Early in January, 1777, Dr. Franklin went to Versailles with E 2 52 his colleagues, and according to tlie instructions from Congress communicated to the Count de Vergennes, Minister for Foreign Aifairs, certain proposals in writing to induce the Government of Prance to take a decided part in favour of the United States, and send a certain number of ships of the line and frigates to act against the British on the coast of America. But no answer was then obtained to these proposals, that Government not being then prepared to interfere openly in regard to the existing dispute. France had indeed suffered so much in the preceding war with Great Britain that there was probably no Frenchman who did not wish for a diminution of the power and resources of this nation ; and there were but few wlio did not perceive that this reduction would in a considerable degree be effected by d, prolongation of the subsisting contest with America, in whatever way it might ulti- mately terminate ; and therefore, though the French Government did not think it prudent to risk the consequences of a war with Great Britain until the Colonies, or United States, of America should have sufficiently manifested both their ability and deter- mination to persevere in contending efficaciously for their inde- pendence, it was convinced of the impolicy of exposing the latter to the necessity of submitting to Great Britain by any want of arms, &c. to defend themselves, and protract their resistance. France had, therefore, previously to Dr. Franklin's arrival, at the solicitation of Mr. Deane, determined secretly to afford a consider- able supply of artillery, arms, and military stores to the American Congress ; and for this purpose the celebrated Caron de Beau- marchais was employed as an ostensible agent in the business ; and, the better to conceal the origin and nature of this trans- action, he established a commercial house at Paris under the firm of Roderigue Hortalez and Co. And though he was in fact sup- plied with such articles as could be spared from the arsenals of France, and with money to purchase the others by the French Government, he required and obtained from Mr. Deane a stipu- lation that Congress should deliver to his agents tobacco and other American productions to the amount of the articles sup- plied; after which these articles were shipped for America at different times and in different vessels : one of these was the ' Amphitrite,' a large ship, from which were landed in New Hamp- shire the artillery, arms, &c. employed in the capture of General Burgoyne's army. But previously to that event the British troops had obtained important advantages in other parts of America, and 53 in consequence thereof Lord Stormont had complained to the French Court in such energetic and menacing terms of the assist- ance afforded by France to the American Congress, that an imme- diate rupture with Great Britain was apprehended ; and an order was therefore secretly despatched by M. de Sartine, then Minister of the Marine, to recall the French fishermen from the banks of Newfoundland. And, the better to pacify the British Govern- ment, Mr. Hodge, an American merchant, who had equipped and sent out from Dunkirk the privateer by wliich a British packet going from Dover to Ostend, as well as other British vessels, had been captured, was sent to the Bastile ; and the master of the * Amphitrite' (which had recently returned to France after landing her cargo of artillery, &c., in America) was also committed to prison. Indeed, matters became so serious, that M. le Beaumar- chais, though he had done nothing without the authority of his Government, fully expected that a severe punishment would be inflicted on him, as a means of convincing Lord Stormont that the supplies sent to America had been furnished without the privity, or at least the sanction, of the French Government. He came to Passy early in December, and complained in strong terms of the treatment which he was about to suffer, saying, ' On me coupe la gorge comme un agneau,' &c. But while he was doing this, Mr. Austin, who had been despatched by the Government of Massa- chusetts Bay with an account of the surrender of General Bur- goyne and his whole army, arrived at Passy ; and this news being made known, M. de Beaumarchais immediately discarded his fears and returned to Paris in the highest spirits, and with such haste that the cabriolet in which he rode was overset, and one of his arms dislocated, by the way. " The American Commissioners began privately to grant letters of marque to a number of French- American privateers, which harassed the English coasting trade, intercepted a great number of British merchant vessels, and took many prisoners. [Lord Stormont] presented several memorials to the French Ministers, complaining of the equipment of American vessels in the ports of France, bringing in their prizes, &c., and of the assistance France was underhandedly affording to the insurgents, demanding at the same time a categorical answer respecting such conduct. "On this occasion M. de Vergennes affected to remonstrate " One of the privateers commissioned by Franklin (the " Black Prince") took in one year sevonty-five sail. Memoirs, &c., ii. 217. 54 witli tlie American Commissionera, and on tlie 16tli of July, 1777, wrote to them tliat tliey had exceeded the bounds limited at their first interview with him, which were expressly ' que la navigation et commerce Americains eprouveroient toutes les facilites en France qui seraient compatibles avec I'exacte observance des ses traites avec I'Angleterre, qu'il etoil dans les principes du Roi de remplir religieusement.' " This remonstrance might also in some measure haye been in- fluenced by the very unfavourable accounts latterly received from America, which bore a most unpromising aspect for the success of the American cause. In England it was generally thought, even by the friends of America, that the struggle for independence was at an end, and that nothing was left for her but an unconditional submission In the midst of tliis supposed gloomy state of affairs in America, the news of the surrender of the British army, commanded by General Burgoyne, to that of the Americans under General Gates at Saratoga, on the 17th of October, 1777, arrived in Prance, and at the very moment when the French Cabinet was as yet undecided in regard to the steps to be adopted relative to the United States. This memorable event immediately turned the scale, and fixed the French nation in their attachment to the infant republic. The news was received in France with as great demonstrations of joy as if it had been a victory gained by their own arms. Dr. Franklin took advantage of this circumstance, and suggested to the French Ministry that there was not a mo- ment to be lost if they wished to secure the friendship of America, and detach her entirely from the mother country. Urged by these considerations, and fearful lest an accommodation might take place between Great Britain and her Colonies, the Court of France in- stantly determined to declare its intentions, and accordingly on the 6th of December, 1777, M. Gerard, Secretary to the Council of State, repaired to the hotel of the American Commissioners, and informed them by order of the King, that, after a long and mature deliberation on their propositions, his Majesty had re- solved to recognise the independence of, and to enter into a treaty of commerce and alliance with, the United States of America, and that he would not only acknowledge their independence, but actually support it by every means in his power ; that perhaps he was about to engage himself in an expensive war on their account, but that he did not expect to be reimbursed by them ; in fine, the Americans were not to think that he had entered into this reso- 55 lution solely with a view of serving them, since, independently of his real attachment to tliem and their cause, it was evidently the interest of France to diminish the power of England by severing her colonies from her. "This forms a memorable epoch in the political life of Dr. Franklin, as well as in the annals of the United States, because it was in a great measure owing to the aid derived from this powerful alliance that the American Colonies were enabled to resist the mother country and eventually to establish their in- dependence." — (pp. 53 — 61.) NOTE B. The only serious differences known to have arisen between the English Government and that of the United States have sprung out of the arrest and detention of British subjects, suspected of having communication with, or favouring, the South. In dealing with questions of this nature it is generally proper to draw a dis- tinction between persons domiciled in a foreign country, but not naturalized there, and persons merely commorant and not domi- ciled. The former are in principle bound to contribute to the defence of the country in which they have taken up their perma- nent abode, and to the support of the public burthens. In prin- ciple, therefore, (whatever immunities they may enjoy by particular usage,) they are compellable to serve in its armies, except against the State to which they owe natural allegiance ; and they are taken to have accepted its law as the regulator of their civil rights. They have embarked their fortunes in it, and deliberately adopted it as their home. In the case of the latter, there is nothing from which it can fairly be inferred that they have taken upon themselves these liabilities and engagements ; they are bound only to conform their conduct to the criminal law and police regula- tions of the country they are visiting, so long as they remain in it. But both are entitled to the protection of the law which they are bound to obey, and both have a right, if that protection be refused or withdrawn, to appeal for redress to the Power of which they still continue to be subjects even according to the law of their place of sojourn. The only difference is, that the right in the one case is much more circumscribed than in the other, because the domi- ciled person has chosen to place himself, as to his ordinary civil 56 rights, on the footing of a citizen. He could not, therefore, claim restitution or compensation in any case in which the same claim might not have been justly made by a citizen — a rule not applicable to a person merely commorant. The Power appealed to must of course judge for itself whether the act complained of be illegal or no ; though the mode and extent of its inter- ference may and ought to be governed by the particular circum- stances of each case, and a resort to extremities can only be justified by a clear illegality, a real injury, and an absolute denial of justice. When the illegal act is excused by the plea of an overpowering necessity, all that a foreign Government can do is to satisfy itself that the plea is genuine, and to take care that its subjects do not suffer substantial injustice. The suspension* during a civil war, by constitutional authority, of the laws by which civil rights are ordinarily guaranteed, does not, of course, fall under the category of illegal acts ; and citizens, or domiciled foreigners, whose persons or property might be affected by it, could not, as a general rule, make any claims against the Govern- ment on that account: whether coramorant foreigners could justly urge such a claim, would depend on the circumstances of the case, and on considerations which cannot here be followed into detail. Prima facie, a person going to or remaining in a coiintry which is in that unhappy condition, submits himself to all those mea- sures of the sovereign authority which the public safety may seem to require. A violation of the law, by an officer not constitution- ally authorized to suspend it, does of course fall within the cate- gory of illegal acts, however pressing may be the emergency ; but the subsequent ratification of such an act, by the authority which could have suspended the law, might be justly held, against foreigners as well as against citizens, to operate by relation, and to bar all claims which would have been barred had the act been originally legal. These are the general principles applicable to such cases. Tlie facts are, that two British subjects, both of whom appear to have been domiciled in the United States, have, on reasonable grounds of suspicion, been arrested and confined without a legal warrant, and not in a legal prison, and subsequently released ; while in an- other case the officer who had the prisoner in charge refused, under an order from the President, obedience to a writ of habeas corpus. If these acts are not illegal, the British Government has no right to interfere ; if in the opinion of the British Government 57 tliey are clearly illegal, it ia warranted in interfering. Nor does the plea of necessity hold good, for the President (having now a stronger case than JeflFerson had in 1807) might have obtained from Congress, under proper limitations, the power to do wha he is now doing at his own arbitrary will. But interference where no substantial injustice appears to have been done, can have no other object than to guard against injustice in future ; the prudence and propriety of it are to be tested by reference to that object; and, unless the illegality be reasonably clear, there sliould be no interference at all. Whether the President of the United States is constitutionally authorized to arrest without a legal warrant, and to suspend prac- tically in individual cases the privilege of the writ of habeas corpus, is a question which cannot be discussed here. The affirmative has been maintained in an elaborate and very able opinion, pub- lished in the National Intelligencer, and said to be the composi- tion of an eminent jurist, and to have the approval of Mr. Binney, a lawyer of the highest reputation, and the doyen, I believe, of the American bar. It is contended in tliis opinion, — 1. That the power to suspend the writ is not by the Constitution (Art. I, s. ix, 2.) given exclusively to Congress, either expressly or by implication. 2. That this power, together with that of suspending all the other legal guarantees of civil liberty, is incident to the power of declaring martial law. 3. That the power to declare martial law, (which is but the will and pleasure of the holder of the sword,) — or to substitute martial for civil law, even without an express declaration, (which is a formal, public, deliberate act, involving a distinct responsibility,) — and to do this with reference, not to a particular district, but to particular persons, whether citizens or strangers, whenever he thinks that rebellion or invasion render it expedient for the public safety, belongs to the President ; and that it is conveyed to him by the general grant of the " executive power." The exercise of it re- quires, therefore, no mandate or ratification by Congress, although the abuse of it would be a ground of impeachment. It is natural that these amazing propositions should be in- credible to English lawyers, bred up in a free country, where the power of suspending the common right to a habeas corpus belongs exclusively to Parliament, and that of declaring martial law has not belonged to the Sovereign since the Petition of Right. They ' 58 • may, however, though incompatible with our ideas of civil liberty, be consistent with the Constitution of the United States. To me they do not appear to be consistent with it. The first article of the Constitution, in which alone the suspensive power is men- tioned, relates, as it seems to me, exclusively to the legislative authority, and touches the acts of the executive only in their con- nexion with that authority. This hns always been assumed by writers on the Constitution, from Story (On the Constitution, § 1342; his "doubt" refers to the question of exigency) to Curtis {History of the Constitution, ii. 359). They have never, as far as I know, been broached in America before — for the decision in "Luther v. Borden" (Howard's Rep. vii. 1), which relates to a declaration of martial law by the legislature of a State, is irre- levant — and they have against them, I believe, the opinion of Chief Justice Marshall, one of the ablest lawyers who ever lived, as well as that of the present Chief Justice of the Supreme Court, who has declared that he deems the point not open to dispute. Tet since the question, as affecting American citizens, is certainly considered an open question in the United States, we should per- haps have done wisely, if, whatever our own views of it might be, we had forborne (as we well might) to treat the acts whose cha- racter depends on it as clearly illegal. LECTURE II. A FTER all that has been written within the last twelve months upon the Constitution of the United States, and the right, or the crime, of secession, I hardly know whether it be not an affront to any number of edu- cated people to assume that there is any part of the subject which they are not perfectly acquainted with, or on which they have not made up their minds, as far as men will take the pains to do so respecting a matter in which they have no particular concern. Some points, however, there are which might, as it seems to me, be placed in a clearer light without wandering far from the confines of my own province, or entering into dis- cussions with which you are already familiar and which allow a boundless scope to differences of opinion. At the first approach to this subject, we encounter a fact which at once invites and discourages further progress, — I mean the fact that the disagreement which exists at present about the nature and obligations of the Federal Constitution has existed, not only for twelve whole months, but for nearly eighty years, — in a word, ever since there has been a Federal Constitution. There has always been a Federalist party in the United States, and an anti-Federahst party, differing from each other partly on the question of policy, whether it was a good or bad thing to strengthen the central authority and draw tighter the ties which bound the States together, but partly also on the question of constitutional law, what was the actual 60 I stringency of those ties, and what the extent and limits of that authority ^ ? This fact, I say, is at the same time a dissuasive and an inducement to proceed. For whilst on the one hand it proclaims that the question is still open, and invites everybody who pleases to try his hand at a solution, on the other it suggests a suspicion that there is something in it which is practically insoluble, — some difficulty which legal maxims and conceptions will not exactly fit, which there is no key to unlock, and on which logic fatigues itself in vain. Let us try to find out, if we can do no more, how far the question admits of being stated in precise terms, and argued on grounds solid enough to support an argument. The Confederate States say that under existing cir- cumstances they had a right to secede ; that the Consti- tution was a " pact" or league, to which the States were parties ; that the pact had been substantially broken ; and that they were therefore entitled to rescind it. The States which remain in the Union say that there is not, and cannot be, any right to secede under any circumstances whatever ; and that the Constitution is not a pact, but a law ; and they add that, supposing it to be a pact, the pact is not broken. A right to secede, as the words are here used by the " See tlie notes to Story's Commentaries on the Constitution, i. 288, 289 : — " For forty years one great party has received the Constitution as a federative compact among the States, and the other great party not as such a compact, but as in the main national and popular." — {Dane's Appendix, cited by Story, I. c.) That the Constitution is a federative compact was asserted by the Legislature of Kentucky in 1797 and 1798, by that of Virginia in 1798, by Georgia in 1825, by Virginia in 1829, by South Carolina in 1827 and 1833, by North Carolina in 1837. See also Eawle's View of the Constitution of the United States, (1825). The word Federalist is used in the text in its original sense. 61 South, does not mean a legal right. A legal right is a claim created and secured by positive law ; but, by the Southern hypothesis, there is no positive law to which the States of the Union are subject : they cannot therefore, strictly speaking, have any legal rights against each other. A right here means a claim agreeable to received maxims, to legal analogies, and to the general sense of justice. It is only to these maxims and analogies, and to this gene- ral sense, that the South can appeal ; the tenor and history of the instrument called the Constitution fur- nishing them, according to their reading of it, with a minor premiss. In the opinion of the North the States are subject to a law, and have legal rights against each other. But no State has or can have, by law, a right to release itself at its own will from the operation of the law, which in that case would be no law at all. The correctness of this view depends upon the Northern reading of the Constitution. In determining which of these two views is right, or is nearer to the truth than the other, there are two things to be considered — the Constitution itself, and its history. If this were merely or primarily a question of interpre- tation, the history of the Constitution would be import- ant only as supplying a commentary on the text and throw^ing light on its obscure places. But the question, whether a particular act be an agreement or a law, is not merely, nor primarily, a question of interpretation. We have to ask, in the first place, on what authority the act reposes ; by whom, and with what intention, it was done. The history of the Constitution, therefore, in this inquiry, takes precedence of the Constitution itself in the order of importance as well as in the order of time. The estabhshment of the Constitution, according to 62 the Korth, was an act done by the whole body of the American people, exercising a sovereign authority vested in that collective body; the Constitution itself was in- tended to operate as a law, and, so established, became binding as a law on all Americans, and upon all the par- ticular and subordinate societies into which they were grouped, and which were called States ^. According to the South, it was an act done by the thirteen States as sovereign and independent States, none of which had authority to impose a law upon the rest, and which collectively had no authority over any *• Story, i. 281 : — " TJie Constitution was neither made nor rati- fied by the States as sovereignties or political comm unities. . . . The doctrine that the States are parties is a gratuitous assump- tion. In the language of a most distinguished statesman, (Mr. Webster,) * the Constitution itself, in its very front, refutes that. It declares that it is ordained and established by the People of the United States. So far from saying that it is established by the governments of the several States, it does not even say that it is established by the people of the several States ; but it pro- nounces that it is established by the people of the United States in the aggregate. Doubtless the people of the several States, taken collectively, constitute the people of the United States. But it is in their collective capacity, it is as all the people of the United States, that they establish the Constitution." So also Mr. Motley: — "The Constitution was not drawn up by the States, it was not promulgated in the name of the States, it was not ratified by the States. The States never acceded to it, and possess no power to secede from it. It was ' ordained and established' over the States by a power superior to the States — by the people of the whole land in their aggregate capacity, act- ing through conventions of delegates expressly chosen for the purpose within each State, independently of the State govern- ments, after the project had been framed." — Causes of the Civil War in America, by J. L. Motley. See also Lieber's Lectures on the Constitution of the United States, New York, 1861. 63 one of them ; and it was intended to operate as a bare contract between them. The parties to the contract own- ing no common superior, even in the collective body, retained each an independent right to construe its terms, to judge whether they were duly observed, and to rescind it if they were not ". That the States were sovereign and independent at the time when the Constitution was ratified, is admitted generally, but not universally. Let us examine this point a little. The North American colonies, immediately before their separation from Great Britain, were a group of commu- nities, independent of one another, but united by the tie of a common allegiance, and forming part of one empire. A citizen of Massachusetts Bay had a right, if he pleased, to trade with Virginia, or to take up his resi- dence there, subject to no restrictions from colonial legis- lation. The mere severance of the tie of allegiance was not enough in itself to convert them into sovereign States. A handful of villages, a cluster of townships, ten square miles, or twenty, or a hundred, of wood and water or of populous and fruitful plain, do not become a State sim- ply because they are left masterless by revolution or by the fortune of war. No community is a State which has not acquired an organization and a Government ad- equate for the discharge of international duties; — for the perfect performance of them I do not say, but for the performance of them in a real and substantial sense. The colonies were torn gradually away from the mass of ° Resolutions of Legislature of Virginia, 1829 : — "There is no common arbiter to construe the Constitution of the United States : the Constitution being a federative compact between sovereign States, each State has a right to construe the Constitution for itself." See also note (a), p. 60. 64 the empire, clinging long after the commencement of the war to the hope of a reunion ; they were very im- perfectly organized, and animated by nothing like a dis- tinct sense of national unity, either in the separate parts or in the whole ; they were divided by a thousand petty jealousies and jarring interests, which multiplied and gained strength after the Declaration of Indepen- dence, as well as by their separate institutions and habits of local self-government ; and held together by the ne- cessity for a common resistance to a powerful enemy. There was a time when they were neither subject nor sovereign, neither one State nor many, and when it was a matter of uncertainty what their destiny in this re- spect would be. The Unionist influences were weak, the Separatist influences were strong; and the war, which bound them together in their infancy, lasted long enough to leave them a Confederacy, but not long enough to make them a Republic — or, what some thought the only resource against anarchy and impotence, a kingdom. These conflicting tendencies are plainly to be seen in the Continental Congress which first met on the 5th of Sept. 1774, rude and imperfect in form, provisional in its functions, and with no powers whatever beyond that of recommendation and advice. The members of the Congress styled themselves " the delegates appointed by the good people of these colonies ;" but they were in fact, as their first act proved, the delegates of the colonies rather than of the people. As soon as they met, the question arose how they were to vote. Was an equal voice to be given to colonies so unequal in wealth and population, and therefore in their contributions to the common cause? On the other hand, how could there be an apportionment, in the absence of any evidence by which these inequalities could be ascertained ? " The 65 opmion was advanced," says Mr. Curtis ^, " that the co- lonial governments were at an end, that all America was thrown into one mass, and w^as in a state of nature, and consequently that the people ought to be considered as represented in Congress according to their number, by the delegations actually present." These delegations, however, varied in their numbers, not according to any principle, but by accident or arbitrary choice, each colony having sent (as within certain limits they continued to do under the Confederation, and as was done in the assemblies of the Dutch United Provinces) as many deputies as it pleased. It was resolved at last that each colony should have one vote, but it was added that this course was adopted because Congress had not and could not procure the proper materials for ascertaining the importance of each colony. This decision may be said to have fixed, to some extent, the future form of the American commonwealth. The first transition period of the Revolution ended with the publication of the "Declaration of Independence," July 4, 1776. The Declaration, " that these United Colo- nies are, and of right ought to be, free and independent States," was adopted by the votes of all the colonies in Congress, the delegates having previously sought and obtained from their constituents authority to agree to the resolution upon which the declaration was founded. The title of " United States" succeeded from that time, in ordinary use, that of " United Colonies," and in the September following was expressly substituted for it, in commissions and other public instruments, by authority of Congress. Previously, however, on the 24th of June, it had been resolved " that all persons abiding within "^ History of the American Constitution, i. 13.' F 66 any of the United Colonies, and deriving protection from the laws of the same, owed allegiance to the said laws, and were members of such colony ;" and as early as May 10 a recommendation had been issued that the several colonies should establish governments for them- selves, the time having come when the exercise of every kind of authority under the Crown ought to be suppressed. Pursuing this advice, seven of the thirteen colonies esta- bhshed their constitutions in the year 1776, two in 1777, one in 1778. Two (Connecticut and Rhode Island) long continued their old form of charter government. These separate governments were therefore in full operation for some time before the States were formally united by any federal tie. On the same day on which the com- mittee of Congress for preparing the Declaration of In- dependence was appointed, another committee, consisting of one member from each colony, was directed to pre- pare and digest Articles of Confederation. A draft of these Articles was presented by the committee on the twelfth of July, underwent much discussion, and was finally submitted for consideration to the legislatures of the several States, with a request that, if they approved of the instrument, they would authorize their delegates to ratify it in Congress. It was ratified accordingly by eight States on July 9, 1778; by three others be- fore the close of the year : Delaware and Maryland, discontented about the apportionment of the north- western territory, and always slow and unwilling ad- herents to the revolutionary cause, ratified it respec- tively in 1779 and 1781. I have dwelt a little upon these transactions because they are material as shewing the position occupied by the States and State Governments during what I may call the second transition period — the interval between the 67 Declaration of Independence and the final adoption of the Articles of Confederation. We have here, on the one hand, thirteen Governments, bound together by no legal or formal union, and each exercising all the powers of an independent Government, except that it had no transactions with foreign States ; co-operating w^ith each other by means of an assembly of delegates, owning no obedience to that assembly, but receiving from it recom- mendations and advice, and acquiescing tacitly in the exercise by it of a slender and precarious authority, un- defined and unrecognised by law, such as springs up naturally during revolutions. The most remarkable ex- emplification of this is the conclusion of the treaties with France. For every important public act of Con- gress each colony gave special powers to its delegates, — as for the Declaration of Independence, the ratification of the Articles of Confederation, and the appointment of plenipotentiaries to conclude these treaties. But it is re- markable that, though made between the French King and the Thirteen States novimafAm, they were never ratified by the States and never presented to them for ratification. The general opinion of American lawyers is, or lately w^as, that at some point of time not precisely ascertain- able, before the adoption of the Articles, the States had become severally sovereign and independent. Techni- cally they certainly were so ; and they were so substan- tially, subject to the qualfication which arises from the fact that there never had been a time when they were not in co-operation with each other, and never an in- stance, in which they had singly had any transaction with foreign Powers. But that the States at the time of ratifying the Arti- cles considered themselves absolutely sovereign and ab- F 2 68 solutely independent, the strongest proof is to be found in the Articles themselves. The States are everything in this instrument, and the people nothing. The " good people of these colonies" — the " American people" — have now entirely vanished, and State sovereignty is written with jealous care in every line. " The style of this Confederacy," it begins, " is the United States OF America." The States enter into a "firm league of friendship" for limited purposes ; the States reserve individually their " sovereignty, freedom, and independ- ence, and every power, jurisdiction, and right which is not by this Confederation expressly delegated to the United States in Congress assembled." They agreed indeed with each other not to exercise singly some of the most important powers which belong to sovereignty; they agreed to entrust this mass of powers to the United States in Congress assembled, that is, to a body of delegates in which each State had an equal voice with the rest ; they pledged themselves that their union should be perpetual. But it was an agreement without sanctions, and with no machinery provided for enforcing it ; an agreement to which the States only were parties, in which they only were mentioned, and which could be carried into effect only by their voluntary co-operation. A Confederation is nothing else than a perpetual alli- ance, whereby each allied State, without recognising in any higher authority a right to interpose between itself and its own subjects, submits itself, as regards the ex- ercise of some portion, greater or less, of its sovereign powers, to the control of the collective body ; it is a partnership for an indefinite period, in which each part- ner binds himself for the common advantage of the firm. An apportionment is made of the powers of sovereignty. Some are surrendered or restricted — all the rest retained. 69 But the collective body does not acquire any sovereign rights over the subjects or citizens of the confederate States ; created by the contract of alliance, it operates only on the parties to the contract, the States themselves. The Confederation failed, and it is material to observe why. It failed, not because the apportionment had been badly made; not because the powers and attributes lodged in the collective body were too few or too limited in their range ; but because they existed only on paper, and the body ostensibly clothed with them was, as Washhigton said, a shadow for want of abihty to enforce them. It failed because, the power of coercion being wholly wanting, there was not in the States themselves that generous sense of a common obligation, that cogent sense of a common interest, which could alone supply its place. The debts contracted by Congress they would not pay ; the treaties concluded by it they would not perform ; and there were no means of compelling them to do either. Hence discord, impotence, discredit, and premature decay. The remedy invented by the framers of the Constitution was proportioned with great exact- ness to the disease. The apportionment of powers was left in the main unaltered, the attributes of Congress under the Confederation and under the Constitution were (with some not very important exceptions) the same^ What was done was to make them real and effective in the only possible way, by making them operate directly on the people of the States instead of on the States themselves. This, however, gave them a force and character entirely new. The dead semblance of a government became full of Hfe as soon as it was armed with authority to raise its own taxes, employ its * See Articles of Confederation, Arts. 6, 9 : Constitution, Art. i. ss. 8 — 10 ; Art. iii. s. 3; Art. iv. ss. 3, 4 j and Art. v. 70 own officers, levy and maintain its own army. These new authorities, again, called for an executive to wield them, and demanded, besides, a radical change in the composition of the Legislature whose decrees they were created to enforce. The principle of delegation, of as- signing equal votes to communities immensely differing in population and resources, must be abolished wholly or partially — for that is essentially federal, and, within the sphere over which the powers of the central Legislature were to extend, the federal principle had been virtually destroyed. Thus on the ruins of that old Congress, which was a mere Federal Diet, arose a House of Re- presentatives which was a Parliament, a Senate in which the features of Parliament and Diet were combined, and a President who stood at the head, not merely of a Con- federation, but of a people. Yet, vast as this revolution was, it was confined, as has been said, to a limited part of the wide field over which the ordinary powers of government extend. Within that limit the States were, as the French say, " effaced," and reduced to little more than so many geographical divisions. But outside of it they remained what they were before. They were left, as before, in the possession of all the powers of government except those expressly vested in the Union, and in the exercise of these powers they remained as independent of President and Congress as if neither President nor Congress existed. When a Federal tax is to be collected, or a sentence of a Federal Court ex- ecuted, in Ohio, the authorities of the Union act as ab- solutely as if there were no such State as Ohio. If the law of descent or of partnership is to be changed in Ohio, or if Ohio chooses to remodel its whole statute- book, or change its whole form of government, (keep- ing within the bounds of republicanism,) then Ohio 71 acts as if there were no such thing as the Union. Thus over every American citizen, over every square yard of American soil, there are two distinct Govern- ments, two distinct sets of powers and authorities, work- ing simultaneously and quite independently of each other. And it is demonstrably certain that the whole American people is not sovereign, in the true sense of the word, over a single citizen of New York. For the powers of sovereignty, in the contemplation of law, are illimitable, that is, are bounded by no legal restraint ; the British Parliament, which is the depositary of the legis- lative powers attached to the national sovereignty in Great Britain, is not legally restrained, as Mr. Austin rightly says, from abolishing the Church Establishment in Eng- land or the Presbyterian Establishment in Scotland ; and an Act abolishing either would be valid as a law, though a clear violation of the Articles and Act of Union^ The Taxing Acts, against which America rebelled, were per- fectly legal ; an Act abolishing the constitutions of New Zealand and New South Wales, and reducing them to the position of Crown colonies, would be perfectly legal. But the powers exercisable by the American people under the Constitution, and through their legislative organ, the Congress, are subject to legal restraints of the most stringent character, and an Act passed in excess of them would be not merely a piece of oppres- sion or tyranny, — for the most flagrant oppression and tyranny may be perfectly legal, — but it would be an illegal act. It would be no law at all; it would be declared waste paper by the Supreme Court ; and an attempt by the President to enforce it would be no bet- ter than a riot. And the aggregate American people has not, and never had, any legislative power at all, f Austin's Province of Jurisprudence determined, 222, cd. 1861. 72 except under the Constitution. If, then, it is true that the United States are a nation because their constitution within certain Hmits is national, I do not see how we can avoid saying that they are a confederation because beyond those hmits it is federal ^. g Catching at the word " supreme" in Art, vi. s. 2, people some- times argue that because the Constitution, which defines the relation between the Union and the States, is declared to be supreme, tlierefore the Union is supreme ; or that the Union is supreme generally because it is so whilst acting pursuant to the Constitution — that is, within the circle traced out for it by the Constitution. The power of amendment, Art. v., to which Mr. Austin has referred, p. 223, is also sometimes insisted on for the game purpose. By that Article amendments are to be made by a Convention called by Congress, whenever two-thirds of both Houses shall deem it necessary, or on the application of two-thirds of the States, and the amendments are to be valid when ratified by the Legislatures in three-fourths of the States, or by Conven- tions in three-fourths thereof. This Article, which was proposed by Madison, is in fact one of the clearest evidences of the com- posite character, at once national and federal, of the Constitution. The effect of it is this, that each State submits itself to legislation by the aggregate American people (yet not by a simple majority of them) jointly with three-fourths of the States as States. But it does not submit, — on the contrary, it carefully guards itself from submitting, to tlie will of a majority of the American people, or to the will of a majority of the body of States, or to both together. The conclusion, therefore, which Mr. Austin deduces from tliis Article, that "the sovereignty of each of the States, and also of the larger State arising from the Federal Union, resides"— he is careful not to say, in the American people, but — "in the States' Governments as forming one aggregate body," must be read with caution. It is sometimes asked whether, in the event of a collision be- tween the Union and a single State, the latter is not bound to give way. It would be impossible to frame a proposition more directly contrary to the Constitution. The party bound to give way is the party which is in the wrong ; the only criterion of that is the Constitution itself, and the only authorized interpreters of 73 The Constitution of the United States is thus, from beginning to end, a compromise. It holds in combination two principles, nicely, jealously, and elaborately balanced against one another ; it is, in fact, the compound result of two clashing influences which were simultaneously at work upon it at every stage of its construction, and there is hardly any part of it which does not shew visible marks of the forces by which it was beaten into shape. The proceedings of the National Convention, by which it was framed, shew this very clearly. As soon as that body was organized, two parties formed themselves within it, — a national and a federal party. The national party, which supported in the main every proposition tending to promote amalgamation and increase the powers of the central Government, consisted of the larger and more populous States ; the federal party, which fought the battle of State independence, of the smaller and less populous. • The first desired a radical change ; the second wished to perpetuate, with some modifications, the existing system. And the first (in curious contrast to the present state of affairs) was headed by Virginia and Nortli Carolina, the second by New York. " On the one side," says the historian of the Constitution, " we find a strong determination, the result of an apparent necessity, to establish a Government in which the demo- cratic majority of the whole people of the United States the Constitution are the Judges, not the Legislature, of the United States. In " The Bank of Augusta v. Earle," Peters' Beports, xiii. (1839,) it was decided that the rules of international comity apply to the States inter se, the Chief Justice declaring that " they are sove- - reign States." " This is the first time," said Judge M'^Kinlay, who dissented from the judgment; " since the adoption of the Constitu- tion that any federal court has directly or indirectly attributed national power to any of the States of the Union." 74 should be the ruHng power, and in which, so far as State influence was to be felt at all, it should be felt only in proportion to the relative numbers of the people com- posing each separate community." The States which were animated by this determination were Virginia, Pennsylvania, North Carolina, South Carolina, Massa- chusetts, Georgia ; South Carolina and Georgia acting with Virginia, though inferior in population to New Jersey and New York^. On the other hand, a compact minority insisted that the States, which were sovereign and independent political societies, could neither law- fully nor safely abdicate that position ; and they steadily refused to place themselves " at the mercy of great com- munities, whose policy might overshadow and whose power might destroy them." This minority consisted of New York, New Jersey, Maryland, Connecticut, and Delaware. Khode Island would have nothing to do wdth the Convention, and was never represented in it, her people deeming any approach towards centralization dangerous to their peculiar commercial interests and to their grand scheme for paying their debts in depreciated paper money. New Hampshire sent no delegates till the most important debates were over. The first division took place on a resolution, which in- volved the whole question at issue, " that a national Government ought to be established, consisting of a supreme legislative, executive, and judiciary." The dis- tribution of votes on this and on subsequent occasions was not uniform, but the line by which the two camps were divided may be traced, roughly and irregularly, from first to last. I cannot attempt here to examine the '' South Carolina voted, liowever, witli New Jersey for electing the House of Representatives by the States, instead of by the people directly, and New York against it. 75 debates in detail ; but it will be enough for our pnrpose to take one or two salient points, such as the constitution of the Senate and the peculiar functions of the judiciary. The greatest and most momentous of all the debates in Convention turned on the questions by whom — whether by the people or the States — the two branches of the central Legislature should be elected, and whether the representation accorded to the several States in each branch, or in either, should be equal, or proportioned to their population. " Neither party," we are told, was at first willing to adopt the suggestion " that the two ideas, instead of being opposed, ought to be combined, and that in one branch the people should be represented and in the other the States, The consequence was that the proportionate rule of suffrage for the first branch was es- tablished by a majority of one State only, and the Con- vention passed on, with a fixed and formidable majority wholly dissatisfied, to consider what rule should be ap- plied to the Senate'." " Two courses only remained. The basis of representation in the Senate must either be found in the numbers of people inhabiting the States, creating an imequal representation, or the people of each State, regarded as one, and as equal with the people of every other State, must be represented by the same number of voices and votes. The former was the plan insisted on by the friends and advocates of the ' national' system ; the latter was the great object on which the minority now rallied all their strength. " The debate was not long protracted ; but it was marked with an energy, a firmness, and a warmth, on both sides, which reveal the nature of the peril then hanging over the ' Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, and Georgia were against equality of suffrage in the House of Representatives; New York, New Jersey, and Dela\vare in favour of it. 76 unformed institutions, whose existence now blesses the people of America. As the delegations of the States approached the decision of this critical question, the result of a separation became apparent ; and with it phantoms of coming dissension and strife, of foreign alliances and adverse combinations, loomed in the future. Reason and argument became power- less to persuade. Patriotism for a moment lost its sway over men who would at any time have died for their common country. Not mutterings only, but threats even, were heard of an appeal to some foreign all}^, by the smaller States, if the larger ones should dare to dissolve the confederacy by insisting on an unjust scheme of government. " Ellsworth, of Connecticut, in behalf of the minority, offered to accept the proportional representation for the first branch, if the equality of the States were admitted in the second, thus making the government partly national and partly federal. It would be vain, he said, to attempt any other than this middle ground. Massachusetts was the only Eastern State that would listen to a proposition for excluding the States, as equal political societies, from an equal voice in both branches. The others would risk every consequence, rather than part with so dear a right. An attempt to deprive them of it was at once cutting the body of America in two. "At this moment, foreseeing the probability of an equal division of the States represented in the Convention, one of the New Jersey members proposed that the President should write to the executive of New Hampshire, to request the attendance of the deputies who had been chosen to represent that State, and who had not yet taken seats. Two States only voted for this motion, and the discussion proceeded. Madison, "Wilson, and King, with great earnestness, resisted the compromise proposed by Ellsworth, and when the vote was finally taken, five States were found to be in favour of an equal representation in the Senate, five were opposed to it, and the vote of Georgia was divided." — [Curtis, pp. 140, 141.) The final expedient adopted to escape a dead-lock was a double compromise. The minority made a fur- 77 ther bid, which was accepted. The House of Repre- sentatives was to have the exchisive power of origi- nating money-bills. With this addition the Ellsworth proposal was adopted, the larger States reluctantly giving way. The question very early arose, how the two autho- rities which I have described as co-existing throughout the United States, — the authority of the several States and that of the Union, — could be kept from clashing with each other. Governor Randolph's plan, which was first brought forward, and formed the basis of the Con- stitution, contained a clause authorizing the use of force against a recalcitrant State; but Mr. Madison justly observed that this would be practically very like a decla- ration of war, and would probably be considered by the party attacked as a dissolution of all its constitutional engagements : — words which may now be considered prophetic ^ The readiest and most natural way was to subordinate the one authority to the other, by giving the Legislature or the Executive of the Union a negative on the acts of the States. Such a negative might be general, or it might be confined to such acts as, in the opinion of the person or persons invested with it, were at variance with the Constitution. The Eng- lish Crown, as wo know, exercises a general power of disallowing at its pleasure the Acts of colonial legis- latures ; and there were some eminent men (Mr. Madi- son himself among the number) who wished to see such a power given to the American Senate ^ This would have made the Government of the Union really supreme, not only within its own limited sphere of action, but gene- rally, over the Governments of the States. But it was not done. The Convention did indeed, in the first instance, J Curtis, ii. 62. " Ibid., ii. 51. 78 adopt in committee a resolution that Congress should be empowered " to negative all laws passed by the several States contravening, in the opinion of the na- tional Legislature, the Articles of Union, or any treaties subsisting under the authority of the Union." But even this was ultimately struck out, and replaced by two substitutes, — by a harmless declaration, proposed by a vehement State -rights man, Luther Martin of Maryland, that " the Constitution, the laws of the United States made in pursuance thereof, and treaties made under the same authority," should be the " su- preme law of the land," — and by those remarkable pro- visions which vested in the Federal Courts the power to declare void any Act, whether of Congress or of a State Legislature, which the judges might deem con- trary to the Constitution ; to arrest, as it were, with one hand encroachments of the States upon the Union, and with the other encroachments of the Union upon the States \ Such in its general character being the Constitution of the United States, how was it enacted ? I will enumerate briefly the successive steps. The first was a resolution of the Federal Congress, introduced by the delegates from Massachusetts, and passed in February, 1783, which declared it expedient " that a Convention of delegates appointed by the several States should be held for the purpose of revising the Articles of Confederation, and reporting to Congress, and to the several Legislatures, such alterations therein as should, when agreed to by Congress and confirmed by the States, render the Federal Constitution adequate to the exigencies of go- vernment and the preservation of the Union." A Con- vention was to frame a draft. Congress to adopt, and ^ Art. vi. 79 the States to confirm it. This resolution exactly tallied with the provision made by the 13 th of the Articles of Confederation, except that that article says nothing about a preliminary Convention. The Convention met, framed and adopted, after long debate, a draft Consti- tution, and reported it to Congress"^. By Congress it was transmitted to the State Legislatures, " in order to be submitted to a Convention of delegates chosen in each State by the people thereof." And it was thus ratified accordingly. The reasons for this method of proceeding were simple and intelligible, and very agree- able to the temper of the American mind. The State Legislatures were indeed, in every State, the actual depositaries of political power ; but it might well be doubted whether they were authorized to transfer that power, or any portion of it, to a body external to the State, or to subject for ever the people of their own com- munity to the acts of a Legislature in which they would have perhaps an inconsiderable share. The practice of acting by conventions or committees, chosen spontane- ously and irregularly, had been familiar in every State from the very beginning of the Revolution; and it would occur at once to every American as the proper and legitimate way of obtaining the assent of the com- munity to any large alteration in their political condition. The act was one which required the assent of the sove- reign power in each State, and the sovereign power re- sided in the people, the functions of the Legislature being limited and defined by law. But a resort to the "" There is a tradition that "VVasliington, wlien about to sign it, rose from bis seat, and, bolding tbe pen in his hand, said, " Should the States reject this excellent Constitution, the pi-obability is that the opportunity will never again offer to cancel another in peace. The next will be drawn in blood." — Curtis, ii. 487. 80 people as the source of sovereign power within a parti- cular community does not destroy or suspend the sepa- rate existence of the community itself ; nor is its identity drowned or lost because other communities are doing the same thing, for the same object, at the same time. And that the mode of proceeding did not (as has been very often contended by very high authorities) convert the ratification from a federal into a national act, in other words, from an act done by each community, separately and independently, into an act done by the American people in their collective capacity, will be clear if we consider what those words mean. To up- hold the latter view is really to maintain that the rati- fication by a majority of the whole American people would have bound the minority, as a majority of all the French people elected Louis Napoleon Emperor, and as a majority of all the Savoyards are reckoned to have approved the annexation of Savoy; that the people of the Eastern States, if they had all voted against it, could have been compelled to accept it as a law by the unani- mous votes of the people of the Southern States ; that this was the light in which the act was regarded at the time ; in a word, that the question submitted to the Convention of New York was not whether the State of New York should agree to the Union, though that was the only question which a majority in New York was competent to determine. Propositions evidently absurd and historically untrue. On the contrary, we know as a matter of fact that one main purpose for which Conventions were resorted to was to provide for the very possible contingency that some of the States might reject (as North Carolina and Rhode Island did) the new Union, and to enable those which adopted it to coalesce without them. "This 81 could only be done," says Mr. Curtis, " by presenting it for ratification to the people of each State, who pos- sessed authority to withdraw the State Government from the Confederation, and to enter into any new re- lations with the people of such other States as might also withdraw from the old and accept the new system." I should not have dwelt on this point had not the oppo- site view been maintained, not only by an admirable his- torian like Mr. Motley, but by great American lawyers, like Webster and Story. But it is not in America alone that great lawyers sometimes suffer themselves to use words without attaching to them a distinct meaning. Let me wind up this review with a short quotation from Mr. Madison, to whom, next to Hamilton, the American Constitution is due, written at the time when he was the coadjutor, as well as the friend of Hamilton, and a few weeks after he had been supporting, in Con- vention, measures which vi^ould have made the Union still stricter than it is, — the general veto, for instance, and the principle of proportionate representation in the Senate : — " The proposed Constitution, even when tested by the rules laid down by its antagonists, is in strictness neither a na- tional nor a federal Constitution, but a composition of both. In its foundation it is federal, not national ; in the sources from which the ordinary powers of the Government are drawn, it is partly federal and partly national ; in the ope- ration of these powers it is national, not federal; in the extent of them, again, it is federal, not national ; and finally, in the authoritative mode of introducing amend- ments, it is neither wholly federal nor wholly national." — Federalist, No. xxxix. •* ° This number contains a very clear and succinct view of the whole subject. See also Madison's Letter to Mr. Everett, August, 1830— Story, i. 375. G 82 I have travelled tlirough details which I fear have been tedious to you, because it is impossible to form any clear ideas on this subject without attention to details. There has seldom indeed been a controversy in which conclusions of fact have been so freely built on mere words, or large conclusions of law on phrases having no precise legal signification. I think also that we may now understand how it is that the disputants have generally failed to close with each other, and how a Constitution framed with a wise and laborious solici- tude to reconcile conflicting tendencies, and compose practical diff'erences, but with no pedantic anxiety about abstract principles, has furnished inexhaustible matter for argument to those whose eyes have been fixed on difl'erent sides of the shield. A constitutional lawyer is always on dangerous ground when he has to deal with cases arising out of rebellion or revolution. The one attacks, the other overthrows, the law on which he is used to rely. His clue fails him, his lamp goes out, in that troubled atmosphere ; and he has a constant temptation to stray in search of other guides, and to confound morality with law. And an English lawyer would certainly fall into error who should overlook the essential difference between the constitu- tion of his own country and that of the United States. The will of Parliament, it has been sometimes said, is the British Constitution. The English Government (by which I mean the legislative and executive powers combined) cannot act illegally; the Government of the United States can ; and, in the view of law as well as in that of morality, there is a wide diff'erence between armed resistance to a Government acting legally, and armed resistance to a Government acting illegally. In the present case, however, it is not even pretended that 83 Mr. Lincoln's Government, at the time * when this war began, had been guilty of any illegal act ; the resistance to it was therefore clearly treasonable by the law of the United States, and it matters not a jot, from this point of view, whether the criminals were a handful of rioters, or the Legislature and people of a State. The Union, within the sphere assigned to it by law, is supreme ; the maintenance of Federal fortresses and the collection of Federal duties belong to that sphere ; the State of South Carolina in relation to these things was but a province, and her Legislature a mere provincial assem- bly ; and the levying of war for the purpose of attacking those forts or resisting the collection of those duties was clearly and undoubtedly treason. If Mr. Lincoln could catch Mr. Jefferson Davis, he would be warranted by law in hanging hira, — as the English Government would have been warranted in hanging Washington in 1776- Secession is here a word without legal meaning; it is merely a popular euphemism for that which the law calls treason. A man may prefer the name of seceder to that of rebel, but he can no more alter by doing so the character of his crime than a thief who should deny having stolen a purse, and candidly admit that he had taken it. This is all that the Constitution has to say on the subject. It is both national and federal, as we have seen, in relation to the same persons, but not in relation to the same transactions or object-matter. Considered with reference to its object, it is exclusively national or exclusively federal. Here it puts on its national, and puts off its federal, character. If you appeal to it as a national Constitution, this is its answer : if you appeal to it as a federal Constitution, it is silent. The only course therefore which is open to the Con- g2 84 federates is to decline its jurisdiction altogether. Ac- cordingly they allege, in a confused way, that they have a rioht to throw it overboard, as a broken contract. Here we are out of the range of positive law. The question has become a question of morality, although light may be shed on it by legal maxims and legal analogies. Here the semi-federal character of the Constitution, and its early history, resume their importance, and the seces- sion (to use an indifferent word) comes before us, not stripped, like a criminal at the bar, of all that would be irrelevant to the legal issue of guilt or innocence, but coloured by its causes and motives, and surrounded by every qualifying circumstance by which it may be either aggravated or excused. The discussion has been pur- sued on both sides with great warmth and some in- genuity. What is the result ? The Southern argument, if you try to take hold of it, crumbles in your hands. " A compact broken in any part," they say, " is broken altogether." As a principle of law, that is not univer- sally true. " In the absence of any recognised arbiter, each party to a contract is judge of his own obligations under it." This proposition is either absurd or tautolo- gous ; absurd, if it means that each party is sole judge, (since, every obligation conferring correlative rights and the obligations themselves being interwoven, there must necessarily be as many judges as there are parties) ; tautologous, if it means anything else. " The Constitu- tion is a pact, not a law." The distinction between a law made by a people for itself, and a pact constituting and expressly declaring itself to be a law, is one which exists only in the mind; and if the Constitution be in any sense a pact, it is one which is in form and substance indissoluble, and has not only imposed obligations on the contracting parties, but has essentially altered their 85 relative status. "The Constitution has been broken." The only approach to a distinct allegation on this head is contained in the Report of the General Assembly of Virginia, and relates to the laws made in many of the Northern States concernino; the surrender of fugitive slaves. These laws are certainly repugnant, if not to the letter of the Constitution, to its spirit °. They amount to a refusal on the part of the States to assist in any way the execution of the Federal law on the subject, and, in some instances at least p, they make the recovery of a fugitive so difficult and dangerous a proceeding as to be virtually impossible. Whether they are an actual violation of the Constitution may be a question ; they certainly run to the extre.ue verge of it. Apart from this, the South insists on no tangible complaint, and produces, as far as I can discover, no intelligible justi- fication. The Northern argument turns chiefly on the difference between pact and law. And it would probably be suc- cessful if this question were to be discussed before a bench of jurists or in a school of metaphysicians. But we are here inter apices juris. And to whom are they addressed, these subtle and fine-drawn distinctions — this nice dissection of words and analysis of ideas — these disquisitions on points which men have disputed for nearly a century without convincing one another? They are addressed to a cluster of semi-independent communities, some of which can trace back their sepa- rate history to a period long before the Revolution, whilst others, having successively formed themselves on territory acquired by the Union, have been admitted " Art. iv. s. 2. P Tliis applies to Maine, Vermoat, Masaacliusetts, Couuecticut, and Wiscoiisiu. 86 into it on a footing of complete equality with the original States. These communities, differing many of them as widely as possible from their old associates in manners, laws, and interests, and jealous at all times of the least encroachment on their dignity or freedom, have been bound to the North and West by a tie essen- tially national in its character, yet slender and at best imperfect. Each, to its own citizens, is and has always been the immediate, though not the only, object of those feelings, and source of those benefits, which men ex- perience towards and receive from their country — has given them security of life and property, government, liberty, and by far the largest part of the laws under which they live — and has expected from them correspond- ing duties in return. The people of these communities, inhabiting a country larger than France and Germany, assert (whether rightly or wrongly, we in England can hardly take on ourselves to determine,) that the Union has ceased to be advantageous to them, and ceased to be just towards them ; that their interests are systematically sacrificed, and their laws and institutions attacked and endangered ; and they pour out against it a flood of complaints and reproaches as vehement to the full as those which formed the preamble to the Declaration of Inde- pendence, and not much more vague. And the scene of all this is a country which has treasured the right of revolt as the charter of its own freedom, and regarded the exercise of it as restrained only by motives of pru- dence, and needing no public justification except out of " a decent respect for the opinions of mankind ;" a country — the only one in the world — which has mad 3 the theory of a social compact the basis of its insti- tutions ; which was the first to promulgate formally the doctrine that *' all just governments derive their 87 power from the consent of the governed," and has never ceased to applaud every application of that doctrine abroad, nor to teach and proclaim it at home. I know, of course, that the Union as well as the States — nay, in some respects more justly and more strongly — can appeal to its history and its laws, to the benefits it has conferred, the prospects it opens, the interests it has cherished, the attachment it has inspired. I know what moral ties are woven by these benefits and by this long and intimate association. And the powerful motives which forbid the North to ac- quiesce patiently in a revolt that would make New Orleans the seat of a foreign power, and line with foreign fortifications the southern shores of Chesapeake Bay, are not perhaps sufficiently appreciated in England ; though, in a quarrel which arose mainly from the resist- ance, or apprehended resistance, of the North to the extension of the area of slavery, English sympathies have generally enlisted themselves, as was natural, on the Northern side. If those sympathies have in any degree been alienated, it is not for me to inquire why, or by whose fault, this has happened. But I think we may now see that the two principles balanced against each other in the American Constitution have in fact repre- sented two classes of interests, two bodies of sentiment, two sets of traditions and institutions, two allegiances 'i ; that these diverse influences, the compromise between them having at length been rudely broken, are now at strife with one another; and that Englishmen are not to blame if that which the North calls a wicked re- bellion is to them simply a civil war. Suffer me, in conclusion, to add a few words on a sub- •i I do not use the word in ita strict sense, though some States (1 know not how many) have treason-laws of their own. ject with which these events have a direct connexion — the uses and imperfections of the federal principle of government. Federalism is an expedient for enabling a number of distinct societies to enjoy the chief advan- tages of a true national unity without submitting them- selves to its ordinary conditions ; to possess the security, the external strength, the majesty and influence, of a great nation, without making those sacrifices which the pro- cess of fusion, be it quick and violent, or imperceptil)le and slow, necessarily entails. It assumes the existence of common interests large and permanent enough to form the basis of an organic union, yet not powerful enough in themselves, or not armed with sufficient force, to subdue in the' separate communities (as is at present being done in Italy) the love of independence, and the particular interest which each has, or thinks it has, in retaining the exclusive control of its own affairs. Such a state of things may arise from the gradual disintegra- tion of a great monarchy, or of a great republic-, or from a revolution cutting the link of a common alle- giance; or by simple aggregation. The theory is most engaging, and it has been hailed again and again as an invaluable discovery in political science ; but in practice it has rarely or never achieved all that was expected from it. There have been jars and dissensions, torpor and para- lysis ; foreign influence and intrigue have crept in on every side, and the machinery has failed to work well for want of sufficient motive power. It is because the German Confederation is unable to stir hand or foot that poli- ticians hold it so valuable to the tranquillity of Europe. In truth, though built to last for ever, these edifices have generally seemed adapted only for a period of transition ; they have had the air of temporary arrange- ments, even when expressly and solemnly declared to be 89 perpetual. Nor is this difficult to nccouut for. In poli- tics there is nothing so hard to preserve as a balance of power. Political power is a force which does not stand still ; it waxes or it wanes. Thus the eighteenth century was spent in adjusting and re-adjusting a supposed balance among the great monarchies of Europe ; and we all know how Blackstone's elegant theory of the British Constitution has been destroyed by the inevit- able growth of the House of Commons. In a federal system the common government is balanced, by the help of arrangements more or less artificial, against the particular governments. But it can rarely hold its own against them at the outset, and the disproportion has a natural tendency to grow. The interests and feelings which they represent, if smaller, are busier and more active, multiply faster, and lie closer to the individual citizen, than those impersonated by the central govern- ment"^; they command more influence and attachment; and if the force they are armed with is less, they are better able to use it. Where this tendency has been reversed or held in check, it has commonly been by the aggrandisement of some member of the confederacy, some Province of Holland or Canton of Berne, which, by establishing a hegemony, has made the central go- vernment in a manner its own ; by the necessity for sustained resistance to external dangers ; or by the rise of some common interest or sentiment (usually some form of ambition) powerful enough to overmaster the crowd of separate interests, its rivals. With these risks and disadvantages, the federal prin- ciple has done great service, and all that can be objected ■■ There are some good observations on the probability tliat tlie States of the Union would encroacli on the Federal Govern- ment, Federalist, xvii., xlv., xlvi. 90 to it is, that it has fallen short of its aims. It is still a favourite with many political thinkers, and it is pro- bably destined to revive in untried forms hereafter. It was not entirely, perhaps, from a settled conviction of its expediency for Italy, nor as an experiment in poli- tical science, that a great potentate lately proposed the establishment of an Italian Confederation. But the project of a federal union among some of our own colonies, and even of connecting the mother country herself with her colonies in a relation substantially federal, has been often discussed amongst us, and pro- bably not for the last time. The formation in America itself of a cluster of clusters, a system of composite governments united by a federal alliance, is one of the possible results of this war. The American Constitution, which is a semi-federal system engrafted on an older and purely federal one, is undoubtedly the most beautiful and carefully wrought structure of its kind which the world has ever seen. It was constructed under the pressure of great practical evils, for which it appeared to offer the only adequate remedy — not by speculative theorists, but by men of eminent abilities, extensive political knowledge, and strong, practical good sense. No one, I think, can now read the collection of papers published in 1788 and 1789 under the title of the " Federahst," for the purpose of winning over the reluctant State of New York, without conceiving the highest admiration for the two chief writers in it, who were likewise the chief authors of the Constitution — especially Alexander Hamilton. I know no finer model of political writing than some of these papers, from which De Tocqueville's view of the Constitution is mainly taken. The Constitution itself has hitherto answered, very fairly, the expectations formed 91 of it ; and De Tocqueville observes that, intricate as is the relation which it establishes between the power of the Union and that of the States, he never met with an American who had any difficulty in saying how it would practically work in any particular case. American writers and orators have exhausted upon it, we know, even their copious stores of panegyric ; not even our own (which Hamilton thought the best in the world) has received from its admirers such extravagant praise. It would admit, they affirmed, — and this in their eyes was its greatest merit, — an unbounded expansion of ter- ritory, an indefinite multiplication of new States : the able historian of the Constitution, writing three years ago, declares that there is no ihiaginable variety of race, climate, situation, occupation, and hereditary customs, which might not submit happily to its light control and find a suitable place within so elastic and comprehensive a system. Yet this extension has proved to be a real danger. The separate interests of the States have mul- tiplied, and that jealousy of the central power which calls itself by the name of Democracy has almost from the very first been the most active and powerful element in American politics. Jefferson long ago looked forward to the disruption ; in his view it was fast becoming a mere question of time. He was ready, in 1803, when some anticipated from the acquisition of Louisiana a fu- ture division of the Union into an Atlantic and a Missis- sippi confederacy, to say gaily, " Let them part by all means if it is for their happiness to do so. It is but the elder and the younger son differing. God bless them both, and keep them in union if it be for their good, but sepa- rate them if it be better." But his fears were thoroughly aroused in 1820, when at the time of the Missouri con- troversy he saw a principle of political discord becoming 92 coincident, as he thought, with a particular geographical L'ne, that hne coinciding eastwards with the Potomac. He thought that destined to be fataP. What he antici- ^ In 1798 he writes to a friend wlio bad said "that it was not unwise now to estimate the separate mass of Virginia and North Carolina with a view to their separate existence," — " It is true," he answers, "that we are completely under the saddle of Massachusetts and Connecticut, and that they ride us very hard, cruelly insulting our feelings, as well as exhausting our strength and subsistence. Their natural friends, the three other eastern States, join them from a sort of family pride, and they have the art to divide certain other parts of the Union so as to make use of them to govern the whole. . . . But if on a temporary superiority of one party, the other is to resort to a scission of the Union, no federal Govern- ment can ever exist. If to aid ourselves of the present rule of Massachusetts and Connecticut we break the Union, will the evil stop there ? Suppose the New England States cut off, will our natures be changed ? Are we not men still, to the south of that, and with all the passions of men ? Immediately we shall see a Pennsylvania and a Virginia party arise in the residuary con- federacy, and the public mind will be animated by the same party- spirit. "What a game, too, will the one party have in their hands by eternally threatening the other that, unless tliey do so and so, they will join their northern neighbours. If we reduce our Union to Virginia and North Carolina, immediately the conflict will be established between the representatives of these two States, and they will end by breaking into their simple units. Seeing, therefore, that an association of men who will not quarrel with one another is a thing which never yet existed, from the greatest confederacy of nations down to a town meeting or a vestry ; seeing that we must have somebody to quarrel with, I had rather keep our New England associates for that purpose than see our bickerings transferred to others. They are circum- scribed within such narrow limits, and their population is so full, that their numbers will ever be in the minority, and they are marked like the Jews with such a perversity of character as to constitute from that circumstance the natural division of our parties. . . . Better keep together as we are, haul off from Europe as soon as we can, and from all attachments to any portions of it, and if they sliew their power just sufficiently to hoop us together, 93 pated has actually occurred. In 1826 Georgia, on no greater provocation than a petty quarrel about her deal- it will be the happiest situation in which we can exist." — Letter to Mr. Taylor, Jefferson's Memoirs and Correspondence, iii. 399. In August, 1803, when the cession of Louisiana w^as under dis- cussion, he wrote to Mr. Breckenridge : — " These federalists see in this acquisition the formation of a new confederacy embracing all the waters of the Mississippi on both sides of it, and a separa- tion of its eastern waters from us. These combinations depend on so many circumstances which we cannot foresee, that I place little reliance on' them. We have seldom seen neighbourhood produce afiection among nations. The reverse is almost the universal truth. Besides, if it should become the great interest of those nations to separate from this, if their happiness should depend on it so strongly as to induce them to go through that convulsion, why should the Atlantic States dread it ? But espe- cially why should we, their present inhabitants, take side in such a question ? "When I view the Atlantic States procuring for those on the eastern waters of the Mississippi friendly instead of hostile neighbours on its western waters, I do not view it as an Englishman would the procuring future blessings for the Erench nation, with which he has no relations of blood or affection. The future inhabitants of the Atlantic and Mississippi States will be our sons. We leave them in distinct but bordering establishments. "We think we see their happiness in their union, and we wish it. Events may prove it otherwise. Why should we take part with our Atlantic rather than our Mississippi descendants ? It is the elder and tlie younger son differing. God bless them both, and keep them in union if it be for their good, but separate them if it be better."— J5. 521. But in 1820 : — "Although I had laid down, as a law to myself, never to write, talk, or even think of politics, to know nothing of public affairs, and therefore had ceased to read newspapers, yet this Missouri question aroused and filled me with alarm. The old schism of federal and republican threatened nothing because it existed in every State, and united them together by the fraternism of party. But the coincidence of a marked principle, moral and political, with a geographical line, once conceived, I feared would never more be obliterated from the mind, that it would be recur- ring on every occasion, and renewing irritations until it would 94 ings with the Indian tribes, threatened secession and a Southern confederacy, and South CaroUna in 1831 went to the very verge of revolt in resistance to the protective tariff, and partly attained her ends. The tariff and slavery have come by degrees to divide North from South by an inveterate antagonism of interest and opinion ; and the line of demarcation is the line of the Potomac. And now the disruption has come; and neither the sentiment of an enlarged patriotism, nor the pride Avith which every American has been accustomed to look back to the past and forward to the future of his country, nor that thick overgrowth of public and private interests which has gradually covered every stone and pillar of the Union and seemed to knit it firmly together, nor those obscure but certain evils which must attend it's fall, have been sufficient to prevent the catastrophe. Whether that Union which extended from the Gulf of Mexico to the banks of the St. Lawrence can in any form be cemented again, we have yet to see. "Near fiiends falling out," Jefferson has said, " never reunite cordially." Mr. Seward, indeed, has told all the Powers of Europe, officially and authoritatively, to dismiss from their minds the possibility of a separation ; the great American Commonwealth, he declares, will stand here- after, as it has stood hitherto, " an object of human kindle such mutual and mortal hatred as to render separation pre- ferable to eternal discord. I have ever been amongst the sanguine in believing that our Union would be of long duration. I now doubt it much, and see the event at no great distance, and the direct consequence of this question, not by the line which has been so confidently counted on, — the laws of nature control this, — but by the Potomac, Ohio, and Missouri, or more probably the Mississippi upwards to our northern boundary. My only comfort and confidence is that I shall not live to see this." — Letter to Mr. Short, iv. 329. 95 wonder and human affection." I know not liow this may be, but I think we may be sure that a Union ce- mented in blood cannot and will not be the old Union. A constitution "ordained and established," not eighty years ago, " to insure domestic tranquillity" and " es- tablish justice," cannot survive untarnished, if it survive at all, a civil war in which one-third of the American people have been arrayed against the other two, and which has already led to something very like a military dictatorship — to the destruction of the freedom of the press, to arbitrary arrests, to the suspension of the right of habeas corpus and of trial by jury \ Like the feet of the great image, it was made of iron and clay ; the iron has not mingled with the clay, and it " is partly strong and partly broken." All Souls' College, Nov. 8, 1861. * See Note B at the end of Lecture I, Ijuntib bjj ^1jS3«. %m\AX, Carnmarbt, #x£orb. i ^-;>' f/- 1 " " I®, f "^'/ji