1. That foreign Powers had the right, and in due regard to their own interests were bound, to recognize belligerency as a fact.
2. That belligerents once recognized, were equals and must be treated with the same perfect neutrality.
It is not necessary to deny these propositions, but simply to ascertain their real meaning. In its primary and simple application, the law of belligerency referred to two or more belligerents, equally independent. Its application to the case of insurgents against an established and recognized government is later, involves other and in some respects different considerations, and cannot even now be regarded as settled. To recognize an insurgent as a belligerent is not to recognize him as fully the equal of the government from which he secedes. This would be simply to recognize his independence. The limitation which international law places upon this recognition is stated in the English phrase, "the right to recognize belligerency as a fact;"—that is, to recognize the belligerent to the extent of his war capacity but no farther. The neutral cannot on this principle recognize in the belligerent the possession of any power which he does not actually possess, although in the progress of the contest such power may be developed.
The Southern Confederacy had an organized government and great armies. To that extent its power was a fact. But when foreign governments recognized in the insurgents the rights of ocean belligerency, they went beyond the fact. They were actually giving to the Confederacy a character which it did not possess and which it never acquired. For the Confederacy had not a ship or an open port. Whenever an insurgent power claims such right, it must be in condition to assume and discharge the obligation which such rights impose. When any power, insurgent or recognized, claims such right,—the right to fly its flag, to deal in hostility with the commerce of the world, to exercise dangerous privileges which may affect the interests and complicate the relations of other nations,—it must give to the world a guaranty that it is both able and willing to administer the system of maritime law under which it claims such rights and powers, by submitting its action to the regular and formal jurisdiction of Prize Courts. Strike the Prize Court out of modern maritime law and the whole system falls, and capture on the sea becomes pure barbarism,—distinguished from piracy only by the astuteness of a legal technicality. The Southern Confederacy could give no guaranty. Just as it undertook to naturalize foreign seamen upon the quarter-deck of its roving cruisers, so it undertook to administer a system of maritime law which precluded the most solemn and important of its provisions— a judicial decision—and converted the humane and legal right of capture into an absolute and a ruthless decree of destruction. No neutral has the right to make or accept such an interpolation into the recognized and essential principles of the law of maritime warfare.
ENGLAND'S MALIGNANT NEUTRALITY.
The application of this so-called neutrality to both the so-called belligerents was not designed nor was it practicable. In referring to the obligation of the neutral to furnish no assistance to either of the belligerents, one of the oldest and most authoritative of international law writers says: "I do not say to give assistance equally but to give no assistance, for it would be absurd that a state should assist at the same time two enemies. And besides it would be impossible to do it with equality: the same things, the like number of troops, the like quantity of arms and munitions furnished under different circumstances are no longer equivalent succors." Assistance is not a theoretical idea; it is a plain, practical, unmistakable fact. When the United States had, at vast cost and by incredible effort, shut the Southern Confederacy from the sea and blockaded its ports against the entry of supplies, when that government had no resources within its territory by which it could put a ship upon the ocean, or break the blockade from within, then it was that England allowed Confederate officers to camp upon her soil, organize her labor, employ her machinery, use her ports, occupy her colonial stations, almost within sight of the blockaded coast, and to do this continuously, systematically, defiantly.
By these acts the British government gave the most valuable assistance to the South and actually engaged in defeating the military operations of the United States. There was no equivalent assistance which Great Britain could or did render to the United States. They might have rendered other assistance, but none which would compensate for this. Let it be supposed for one moment that Mexico had practiced, on the other side of the Rio Grande, the same sort of neutrality,—that she had lined the bank of the river with depots of military supplies; that she had allowed officers of the Confederate army to establish themselves and organize a complete system for the receipt of cotton and the delivery of merchandise on her territory; that her people had served as factors, intermediaries, and carriers,—would any reasonable interpretation of international law consider such conduct to be impartial neutrality? But illustration does not strengthen the argument. The naked statement of England's position is its worst condemnation. Her course, while ingeniously avoiding public responsibility, gave unceasing help to the Confederacy —as effective as if the intention had been proclaimed. The whole procedure was in disregard of international obligation and was the outgrowth of what M. Prévost-Paradol aptly charaterized as a "malignant neutrality."
It cannot be said in reply that the Governments of England and France were unable to restrain this demonstration of the sympathy, this exercise of the commercial enterprise of their people. For the time came when they did restrain it. As soon as it became evident that the Confederacy was growing weaker, that with all its marvelous display of courage and endurance it could not prevent the final success of the Union, there was no longer difficulty in arresting the building of the iron-clads on the Mersey; then the watchfulness of home and colonial authorities was quickened; then supplies were meted out scantily; then the dangers of a great slave empire began to impress Ministerial consciences, and the same Powers prepared to greet the triumph of the Union with well-feigned satisfaction. But even if this change had not occurred the condition of repressed hostility could not have lasted. It was war in disguise —not declared, only because the United-States Government could not afford to multiply its enemies, and England felt that there was still uncertainty enough in the result to caution her against assuming so great a risk. But the tension of the relation was aptly described by Mr. Seward in July, 1863, when he said,—
"If the law of Great Britain must be left without amendment and be construed by the government in conformity with the rulings of the chief Baron of the Exchequer [the Alexandra case] then there will be left for the United States no alternative but to protect themselves and their commerce against armed cruisers proceeding from British ports as against the naval forces of a public enemy. . . . British ports, domestic as well as colonial, are now open under certain restrictions to the visits of piratical vessels, and not only furnish them coals, provisions, and repairs, but even receive their prisoners when the enemies of the United States come in to obtain such relief from voyages in which they have either burned ships they have captured, or have even manned and armed them as pirates and sent them abroad as auxiliaries in the work of destruction. Can it be an occasion for either surprise or complaint that if this condition of things is to remain and receive the deliberate sanction of the British Government, the navy of the United States will receive instructions to pursue these enemies into the ports which thus in violation of the law of nations and the obligations of neutrality become harbors for the pirates? The President very distinctly perceives the risks and hazards which a naval conflict thus maintained will bring to the commerce and even to the peace of the two countries. But he is obliged to consider that in the case supposed, the destruction of our commerce will probably amount to a naval war, waged by a portion at least of the British nation against the government and people of the United States—a war tolerated although not declared or avowed by the British Government. If through the necessary employment of all our means of national defense such a partial war shall become a general one between the two nations, the President thinks that the responsibility for that painful result will not fall upon the United States."