“In general, the commission of a public ship, signed by the proper authorities of the nation to which she belongs [the nation to which the Santissima Trinidad belonged, was the de facto nation of Buenos Ayres] is complete proof of her national character. A bill of sale is not necessary to be produced, nor will the courts of a foreign country inquire into the means by which the title to the property has been acquired. It would be to exert the right of examining into the validity of the acts of the foreign sovereign, and to sit in judgment upon them in cases where he has not conceded the jurisdiction, and where it would be inconsistent with his own supremacy. The commission, therefore, of a public ship, when duly authenticated, so far at least as foreign courts are concerned, imports absolute verity, and the title is not examinable. The property must be taken to be duly acquired, and cannot be controverted. This has been the settled practice between nations, and it is a rule founded in public convenience and policy, and cannot be broken in upon, without endangering the peace and repose, as well of neutral as of belligerent sovereigns.
“The commission in the present case is not expressed in the most unequivocal terms, but its fair import and interpretation must be deemed to apply to a public ship of the government. If we add to this, the corroborative testimony of our own, and the British Consul at Buenos Ayres, as well as that of private citizens, to the notoriety of her claim of a public character, and her admission into our own ports as a public ship, with the immunities and privileges belonging to such a ship, with the express approbation of our own Government, it does not seem too much to assert, whatever may be the private suspicion of a lurking American interest, that she must be judicially held to be a public ship of the country, whose commission she bears.”
This was a very strong case. The ship had not only been fitted out in violation of the neutrality laws of the United States, but the court intimates that she might also be American owned; but whether she was or not, was a fact into which the court could not inquire, the commission, in the language of the court, importing “absolute verity.”
But it is not true, as we shall see hereafter, that the Alabama violated either the laws of nations, or the municipal law of England. The next question which presents itself for our consideration is, Was the Alabama properly commissioned by a sovereign power? No question has ever been raised as to the bona fides, or form of her commission. Mr. Seward even has not attacked these. Our question, then, will be reduced to this, Was she commissioned by a sovereign power? The answer to this question is, that a de facto government is sovereign, for all the purposes of war, and that the Confederate States were a de facto government; so acknowledged by the United States themselves, as well as by the other nations of the earth. The United States made this acknowledgment, the moment President Lincoln issued his proclamation declaring a blockade of the Southern ports; and they acted upon the doctrine that we were belligerents during the whole war, by treating with us for the exchange of prisoners of war.
This was no concession on their part. We had become strong enough to compel them to this course, in spite of themselves. In other words, we had become strong enough to make war, and when this is the case, let us see what Vattel says is the duty of the other party: “The sovereign indeed, never fails to bestow the appellation of ‘rebels’ on all such of his subjects as openly resist him; but when the latter have acquired sufficient strength to give him effectual opposition, and to oblige him to carry on the war against them, according to the established rules, he must necessarily submit to the use of the term ‘civil war.’ It is foreign to our purpose in this place, to weigh the reasons which may authorize and justify a civil war. We have elsewhere treated of cases in which subjects may resist their sovereign. Setting, therefore, the justice of the case wholly out of the question, it only remains for us to consider the maxims which ought to be observed in a civil war and to explain whether the sovereign is, on such occasions, bound to conform to the established laws of war. A civil war breaks the bands of society and government, or at least suspends their force and effect; it produces in the nation two independent parties, which consider each other as enemies, and acknowledge no common judge. These two parties, therefore, must necessarily be considered as constituting, at least for a time, two separate bodies, two distinct societies. Though one of the parties may have been to blame in breaking the unity of the State, and resisting the lawful authority, they are not the less divided in fact. Besides, who shall judge them? Who shall pronounce on which side the right or wrong lies? On earth they have no common superior. They stand, therefore, in precisely the same predicament as two nations, who engage in a contest, and being unable to come to an agreement, have recourse to arms.” This was the law of nations as expounded by Vattel more than a century ago. He tells us that when even a revolt or rebellion has acquired sufficient magnitude and strength, to make “effectual opposition to the sovereign,” it is the duty of that sovereign to talk of “civil war,” and not of “rebellion,” and to cease to call his former subjects “rebels.” How much more was it the duty of the Northern States, in a war which was a war from the beginning, waged by States against States, with all the forms and solemnities of war, and with none of the characteristics of a secret revolt or rebellion, to treat us as belligerents, even if they denied the de jures of our movement? But even according to the law laid down by Vattel, the United States, and the Confederate States stood “precisely in the same predicament,” with regard to all the rights, duties, and obligations growing out of the war. That is to say, they were, quoad the war, the equals, one of the other, and whatever one of them might do, the other might do.
Hence it follows, that if the United States could build Alabamas, and capture the ships of her enemy, so could the Confederate States. And if Mr. Welles, the Federal Secretary of the Navy, could go into the ship-yards on the Mersey, and endeavor to contract for the delivery to him of a ship or ships of war, “to be finished complete,” in the words of Mr. Laird’s correspondent, “with guns, and everything appertaining,” it is difficult to perceive, why Mr. Mallory, the Secretary of the Confederate States Navy, might not go into the same ship-yards, and contract for the delivery to him, of an incomplete ship, without any guns at all!
But further, with reference to the right of the Confederate States to be regarded as a de facto government, invested with all the rights of war. The Supreme Court of the enemy himself affirmed this right, early in the war. When the Federal naval officers—the Southern renegades, who have been before alluded to, among the rest—began to grow rich by the capture of blockade runners, it became necessary, of course, to condemn the prizes before they could get hold of their prize-money. Some of these cases went up to the Supreme Court, on writ of error, and I shall quote from a case, known as the “Prize Case,” reported in 2d Black, 635. This case was decided as early as the December Term, 1862, and Mr. Justice Greer delivered the opinion of the court. The question arose upon the capture of some English ships which had attempted to run the blockade. These ships could not be condemned, unless there was a lawful blockade, which they had attempted to break; and there could not be a lawful blockade, unless there was a war, and not a mere insurrection, as Mr. Seward, with puerile obstinacy, had so long maintained; and there could not be a war without, at least, two parties to it, both of whom must be belligerents; and it is of the essence of belligerency, as has been seen, that the parties belligerent should be equal, with reference to all the objects of the war. The vessels were claimed by the neutral owners, on Mr. Seward’s own ground, to wit: that the war, not being a war, but an insurrection, there could be no such thing as a blockade predicated of it. Mr. Justice Greer, in delivering the opinion of the court, among other things said: “It [the war] is not the less a civil war, with belligerent parties in hostile array, because it may be called an ‘insurrection’ by one side, and the insurgents be considered as rebels and traitors. It is not necessary that the independence of the revolted Province or State be acknowledged, in order to constitute it a party belligerent in a war, according to the laws of nations. Foreign nations acknowledge it as a war, by a declaration of neutrality. The condition of neutrality cannot exist, unless there be two belligerent parties. In the case of the Santissima Trinidad (7 Wheaton, 337) this court says: ‘The Government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed her determination to remain neutral between the parties. Each party is, therefore, deemed by us a belligerent, having, so far as concerns us, the sovereign rights of war.’”
The belligerent character of the Confederate States was thus acknowledged by the highest judicial tribunal of the United States, and the prizes were condemned to the captors; and a precedent is cited by the court, in which the United States recognized the right of the revolted Spanish colonies, such as Columbia, Buenos Ayres, and Mexico, who were then in consimili casu with the Confederate States, to build and equip Alabamas to prey upon Spanish commerce, not as a mere matter of power simply, but in the exercise of the “sovereign rights of war,” under the laws of nations.
With regard to the new American republics, thus acknowledged by the United States as belligerents, it will be recollected that one of the first acts of Mr. John Quincy Adams, when he became President of the United States, was to recommend the passage of a law authorizing him to send members to a Congress of all the American States, to be assembled at Panama. Under this law, members of that Congress were actually appointed—though they never proceeded to their destination—and Mr. Clay, then Secretary of State, and who had been among the foremost to advocate the recognition of the independence of the South American republics, prepared an elaborate and eloquent letter of instructions for their guidance, in which he dwelt upon the very principles I am now invoking. The republics, whose ambassadors it was thus proposed to meet, in an International Congress, were nothing more than de facto governments, like the Confederate States, the independence of neither one of them having been acknowledged, as yet, by Spain.
I may further mention, as a matter of historical notoriety, that it was a common practice for the cruisers of those young republics, to carry their prizes into the ports of the United States, and there have them condemned and sold. The Santissima Trinidad referred to in the case from the Supreme Court above quoted, was one of these cruisers, with nothing more behind her than a de facto government, and she was held to be a belligerent, and to be possessed, as such, of all the “sovereign rights of war,” under the laws of nations. What renders these transactions the more remarkable, in the light of recent events, and in the face of the denunciations which have been hurled against the Alabama by the Federal Government, because of her foreign origin, is, that most of these cruisers were, in fact, American ships, not only built and equipped in the United States, but officered and manned by citizens of the Northern States, who had gone southward in quest of plunder! Many of these ships were fitted out on speculation, in the United States, and sailed from Boston, New York, Philadelphia, and Baltimore, fully armed and equipped for war, with enlisted crews on board.