Glass 
 
 Book: 
 
 'B^s ' 
 
, 
 
 / 
 
 TWO LECTURES 
 
 ON 
 
 THE PRESENT AMERICAN AVAR. 
 
 BY 
 
 MOUNTAGUE BERNARD, B.C.L., 
 
 CHICHELE PROFESSOR OF INTERNATIONAL LAW AND DIPLOMACY 
 IN THE UNIVERSITY OF OXFORD. 
 
 NO r EMBER, M D CCC LXI. 
 
 J. H. AM) J AS. PARKER. 
 

 
-*c> 
 
 LECTUKE I. 
 
 T^HE present war in America may be regarded from 
 two ])oints 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 
 comitries, and their established relations with the United 
 States. This is the point of view proper to an English 
 or Ereneh 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 (piestions 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 (piestions 
 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 
 
6 
 
 entitled to treat both the contending parties as bel- 
 lif/crents — 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. 
 
 8eco7idly, 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 Avill 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 
 
iiiny, or may not, be followed by the other. A revolted 
 })roviiice 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 undecided. 
 
 I. If we ask on what principle it is that this ])ro- 
 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 popu- 
 lation to be treated as a belligerent, and even if their title 
 were questionable, renders it tiie 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 Avhich 
 alone the Porte was willing to consider the Greeks, was not 
 one which could constitute a rule for the conduct of foreign 
 
 '' Pando, Elementos del Dcrcclio Inter nacional, p. 587, cd. 
 1852. 
 
s 
 
 nations, except either 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 rights of 
 war as they affect bystanders or neutrals. The rights 
 which usage and opinion permit to e?iemies 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- 
 
9 
 
 vilegcs to the South, without treating the Southern pri- 
 vateers as pirates. But what would be tlie consequence ? 
 Clearly this, that we must either refuse them to the 
 North also, or nmst 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 Orleaus, uot 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 ai'f/iimentum 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 belHgerent character, renounces ijjsofacfo 
 the privileges of that character for itself. Snch a govern- 
 ment, then, confines itself, as against foreigners, to snch 
 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 conscqnences of its conduct in 
 that respect, it cannot assume the belligerent right of 
 blockaded Neither can it search, arrest, or detain any 
 foreign vessel on the hiGfh seas. 
 
 " These two operations differ in their pi'actical effect on foreign 
 commerce. The British Parliament took llie 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 iiidis- 
 
 raeut, iu 1822, attempted to prohibit all intercourse with the 
 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 proMUtion (which assumed that these ports were 
 actually subject to Spain) with a hlocTcacle (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, (afterwards 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." The 
 Government of "Washington cannot be acquitted, I think, of 
 having pushed to an extravagant length, in this war, the doc- 
 trine of a helium mixtum, on whicli, in 1858, the Neapolitan Prize 
 Commission condemned tlie " 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 simjile 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 
 honajlxles 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 that 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 foi'cigncrs were bound to submit to restric- 
 tions excluding tliem from ports and places not in his possession. 
 
11 
 
 pcnsablc for the effectual 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 against whom it had no cause of 
 quarrel. 
 
 These considerations shew conclusively that for the 
 concession of belhgerent rights there is but one neces- 
 sary, as there is but one sufficient, justification — the ex- 
 istence of war. Wherever the state of war 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- 
 ployed ; secondly, of independent sovereignty in each 
 belligerent, or of an amount of force and organization, on 
 
 But whiclievcr course lie may tliink fit to adopt, tlie riglits aud 
 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 nothing of " mixed" wars. 
 
12 
 
 both sides, sufficient to adiiiit 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'^ But 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 ai"e 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 iu 
 the Uuited States, that a state of war exists which justifies the 
 coufiscatiou 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 Reiwrts, vii. 283; 
 the United States v. Palmer, lb. iii. 610 ; the " Divina Pastora," 
 
13 
 
 captures made by each," said ]\Ir. Justice Story, in the 
 case of the " Sautissiiua 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. o2 ; the '' Nuustra Seuora de la Caridad," lb. 502 ; the 
 "Estrella," lb. 307; the "Alired,"' Dallisous H., iii. ; Talbot 
 V. Jauson, Dal!,, iii. 133. See also Whcaton's Elements, (by 
 Lawrence.) p. 32. lu supporting the clanii of Paul Joues's 
 representatives against Denmark, Mr. AVheatou argued that 
 Denmark was not only entitled, but bound to accord belligerent 
 rights iu 1779 to the United States, which she had not then 
 recognised, and therefore to make compeusatiou for prizes which 
 had 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 li. Potter, in the 
 Senate of Rhode 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 
 Stati.s, tor the preservation of the Union, I may be permitted 
 to make two further quotations from it. " Texas declared herself 
 independent of Mexico in March, 1830, and within six mouths 
 after her flag appeared in New York city ; and when the Mexican 
 JNIinister remonstrated, our 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 tlie party 
 bad 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 co»nmon 
 judge. It is of necessity, therefore, that these two parties should 
 be considered by foreign states as two distinct and independent 
 nations." — Extract front Report of Committee of United States' 
 House of Representatives on Forei<jn 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 w^ar. "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 V "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 poiafc Phillimore's Commentaries, iii. 323. Sir J. 
 Mackintosh, in his speech against the Foreign Enlistment Act, 
 lOtli June, 1819, takes notice that it does not prohibit British 
 subjects from supplying transports. K'or was it designed to pre- 
 vent the 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 racnibers 
 of that Confederation^." 
 
 It is a question at present of no practical moment 
 whether Mr. Wheaton and other writers of respectable 
 anthority 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 rin;ht to take cosrnizance of the internal 
 disturbances of the Turkish empire, and this at a tune 
 \vhen 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 analoo;ous to that between an unconstitutional 
 act and an illegal one. 
 
 s p. 586. 
 
IG 
 
 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. They think and speak otherwise, we 
 all 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 thino-s as subsistinoj until the establ'shment 
 of a new one, and the Americans as one people 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 
 between 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 cpies- 
 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 reasonins:, if it be ridit, 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 ; Kliibcr, IJwojmhcJie VvJJccrrccht, 
 § 23. See Ileffter, Europ. Vdllc, § 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 ri(jlit to be recognised, as well as a capacifi/ 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. PhiUimore,) 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 ex})edients, 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 Dowming-street, and which \vould 
 not be permitted to sue in AVestminster 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) 6nly 
 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. lie 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 < f 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 hap])y to receive, but 
 much happier to get rid of them, if it can be done with- 
 
 c 2 
 
20 
 
 out disputes with tlie 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 w^ith 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 
 Avill enable us to form some idea how these principles 
 have been applied, and how far they are estabhshed 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 vA'ith 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 
 1750 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 Cclebres dii Droit dcs 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 liad 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 belhgerent 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 France 
 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 English 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 colonics 
 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 
 commerce. But as it was more than possible that the 
 Court of London had formed the design of attacking 
 France, His Majesty deemed it right to conclude with 
 the United States an eventual and purely defensive alli- 
 ance," which w^as 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 w^as 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 I'Angleterre, qvie 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 I'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 
 ration considerable tant par le nombre de leurs habitants 
 que par I'etendue de lours domaines, aient etabli leur inde- 
 pendance, non-seuleraent par un acte solennel, mais aussi par 
 le fait, et qu'elles I'aient maintenue centre les efforts de leur 
 mere-patrie. Telle etait en effet la position des Etats-Unis, 
 lorsque le roi a commence d negocier avec eux. S. M. avait 
 
25 
 
 uiie cutiere Hberto do les regarder on commo indepcndants 
 oil commc sujets do la Graude-Bretagno. Elle a choisi le 
 premier parti, parce que sa surete, I'interet de ses pcuples, la 
 politique invariable et surtout les projots secrets de la cour 
 de Londres, lui en imposaiont 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 
 Celebrcs, p. 240.) 
 
 Finally, the French Government stated its case in 
 four propositions : — 
 
 " /. Que k droit des gens, la politique et V exemple meme de 
 V Anglcterre autorisaient le rol a regarder les Americains comme 
 indq^endanfs de fait, des I'ejioque 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 cetfe qualification, il n'a viole ni les traites ni 
 les droits des souverains. 
 
 "III. Qu'oi traitant avec eux, il ne s'esf point rendu cou- 
 pahle de perfidie. 
 
 "IV. Que le traite conelu arec le congres, n'est pas tine 
 offense pour V Angleterre ; que par consequent Vacte, par lequel, 
 il a ete denonce a cette puissance, n'efait point une declaration 
 de guerre \"—(C. 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 Vergenncs, but by traversing his averments 
 of fact. It affirmed that the supplies of arms, ammuni- 
 
 ' Expose des motifs de la conduite du roi de France relativement 
 a r Angleterre, eu 1779; Observations de la Cour de Versailles 
 sur le Memoire Justificatif de la Cour de Londres. Both in Mar- 
 tens, C. C, vol. iii. ed. 1859. 
 
 J The Memoire Justificatif was written in French by Gibbon, 
 at the request of Lord Weymouth, then Secretary of State. He 
 was furiiislied with the correspondence of Lord Stormont, and 
 "spoke," he says, "as a hiwyer 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 France 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 alliance 
 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 Avould 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 within 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 
 w^as 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 affair 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 Government." (Official Report 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 Anf/Iaises," and explaining the precautions adopted to se- 
 cure secrecy and give it the appeai'auce of a private transaction. 
 Martens, C. C, iii. 149. " Cette piece importance," says M. de 
 Flassan, gently, (Histoire de la DipJomatie Frangaise, vii. 151,) 
 *' semble en contradiction avec les priiicipes moraux do 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 I'ambition 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 prop res sujets dans le Nouveau- Monde ou de eeux de 
 I'Espagne, qui auraient des motifs bien plus puissants pour 
 suivre le meme exemple, 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 im})ortant enough to deserve a date. 
 When Buenos Ay res, 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 army 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 Avere 
 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 Cura^oa, (June 29th, 1810,) 
 had instructed him that, Spain remaining Spanish, " His 
 Majesty's Government must discourage every step tend- 
 ing to separate the colonics from the mother country in 
 Europe," but Avould 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 ; 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 ^lackintosh and the Whigs^ A Navi- 
 gation Act, passed in 1822, permitted the importation 
 of articles, the produce of countries which had formerly 
 
 ' Tlie author of Outlines of Lie Bevolution in Spanish Ame- 
 rica; htj a South American, London, 1817, complains tliat the 
 agents sent to Loudon up to that time could not even obtain au 
 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 warning — 
 
 " 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 "Ilis 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 IMadrid, but 
 without any feeling of alienation from that Court, or of 
 hostihty 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 stahilltij 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 hetirtburnings 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 which the foregoing outline has 
 been chiefly taken. 
 
32 
 
 national hw. 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 caiiied on for any 
 length of time without the protection of some recog- 
 nised and efficient authority. " All political communi- 
 ties," wrote Mr. Canning to Zea Bermudez, the Spanish 
 minister, — 
 
 "All political communities are responsible to other poli- 
 tical communities for their condvict ; that is, they 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 
 estabhshed, 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 with the punish- 
 
33 
 
 ment due to pirates and outlaws. If the former of those 
 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 clioice remained for 
 Great Britain, or for any country having intercourse witli 
 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." 
 
 Tlie direct and proper motive, then, was the indis- 
 pensable necessity for some recognised and efficient 
 authority, responsible for the redress of grievances and 
 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 otlier nations. The motives which I 
 take leave to call indirect and improper, sprnng 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 natnrally be a de- 
 sirable object to the English Government. After the 
 restoration of the Bourbons, and until it was clear that 
 Si)ain was invincibly unreasonable, we desired a recon- 
 ciliation. Pending the Congress of Verona, and whilst 
 a French army, the instrument of the Iloly 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, w^ould 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, 
 
35 
 
 not a cruising squadron". But tlieir 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 promi)tly admitted, 
 notwithstanding the remonstrances of Spain. In 1818 
 Mr. Adams begged to assure the agent of Buenos Ayres 
 at Washinoton of his readiness to recogjuise 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. Rush, 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 colonics 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 (^f 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 Monroe's 
 Message, 1822. 
 
 " Hush'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 misatisfactory, 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, 
 hoW'Cver, 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 France 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 jorosecuting those who provided the insurgents 
 Avith money. The Court of Common Pleas justly held 
 these loans illegal ^, but it is not every illegal act which 
 can or ought to be punished as a misdemeanour. 
 
 Passing over rather more than twenty years, avc 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 ]\Iessina. 
 From 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 
 Avas not till the end of j\Iarch, 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 Foreign 
 Cffice,— 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 
 overtln-ow of monarchical institutions, and in any cnse 
 
 P De "Wiitz V. IleuJriks, 9 Moore'a C. F. Reports, 637. 
 
38 
 
 to keep alive the influence of Great Britain, protect her 
 interests, and preserve her poHtical connexions. To 
 bring about a reconciliation between the king and his 
 revolted subjects on such terras as would afford thera 
 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 ftict 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 saluted the Sicilian flag. But these 
 compliments and encouraging assurances, which sprang 
 from a short-lived misconception, and were designed to 
 promote an abortive object, w^re all that the Sicilians 
 really obtained in the way of recognition from the two 
 great Powers of tlie West. They in vain, hi the month 
 of April, despatched four commissioners to negotiate f(jr 
 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- 
 tine, 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 j\Lalta, 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 February, 1S49, when that assistance was 
 withdrawn, and a despatch from Gioberti on the subject 
 elicited only the dry response that " no oflicers 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, vras 
 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 
 " 71 avail jamais cesse auoc yeiix de leurs Goucernetnents 
 respeciifs d'etre le souverain legitime de la nation 
 Sicilienne'^." 
 
 <J In the House of Commona, April 20, 1849, Mr. Bankes 
 asked " When it was that the insurgents of Sicily were first re- 
 cognised by the Grovernmeut of Great Britain as ' the Sicilian 
 Government ?' " 
 
 Viscount Palmerston said; — "Witli regard to the second 
 question, I have to state that the existence of tlie 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 ?" 
 
 "Yiscount 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 revolutions 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 abihty 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, profiered 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 iu France and fliglit of Louis Philippe. 
 ,, March 23. Radetzky compelled to evacuate Milan. 
 
 ,, Aug. 10. Charles Albert driven out of Louibardy. 
 „ Nov. 15. Murder of Kossi. 
 
 ,, Dec. 10. Louis Napoleon elected President of tiie French 
 Eepublic. 
 
 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 channels 
 
 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 law, and 
 
 *■ Wheaton's Elements, by La^vrence, p. 35, note. 
 
 ° As recently as Oct. 1860, tlie Government of the United 
 States recalled its minister, Mr. Eandolph Clay, from Lima, 
 becaase tbe Peruvian Government refused compensation 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 
 Monies, 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, seasonablcness, 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 somethinsj 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 
 liim 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 clement 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. AVhen foreign con- 
 quest tears away a })rovincc, it is a heavy misfortune, 
 l)ut 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 j\lis- 
 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 
 angiily 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 circuLuspection the hands of 
 
45 
 
 every foreign Government onglit 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 jwlicy, 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 always 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, accordino; to its strenofth 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 wliich 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 tiling 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 recosjnition 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 
 will, 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 jtistificativa 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 
 writing 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 sliips, whether cruisers or privateers, or to admit the 
 cue and not the other, and either to grant or refuse them permis- 
 
47 
 
 public and private sliips of either belligerent from bring- 
 ing prizes into our ports. AVe have made no public 
 
 sion to bring in prizes, and to allow or prohibit the sale of prizes 
 brought in, after condemnation by a coui't 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 t!ie establislnnent 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." (Wheaton, El., 498.) " II est gencrale- 
 ment admis que les prises maritimes validees par jugement defi- 
 nitif peuvent etre vendues dans les ports neutres." (Ortolan, Diplo- 
 tnatie de la JSIer, 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 ^e^., 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 witli 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 excliange 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 tlierein, particular care shall be taken 
 to liasten 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. Tho 
 
4S 
 
 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 neio-hbourhood 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 siinilar.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 of 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. RusselVs 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 o{ reJache forcee. (2.) No sale of goods belonging to 
 prizes is allowed in our ports or roadsteads." 
 
 The regulations published 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 
 wonld 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 
 bursthig 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 nuist 
 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 
 
 E 
 
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 Memoirs of the Life ami Writings of Ben- 
 jamin Franklin, by his Grandson, William Temple Franklin. 
 London, 1818. Vol. ii. 
 
 " Ameeicak paper-money beginning about this time to fall into 
 disrepute, and immediate supplies of arms and ammunition for tlie 
 use of the ai-my 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 1770 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 philosoplier, the most suitable 
 person to elfect 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 private and confidential agent in Eng- 
 land."— (p. 42.) 
 
 " Dr. Franklin was privateli/ received, with every demonstration 
 of regard and respect, by the Minister for Foreign Affairs, M. le 
 Comte de Vergennes, who assured him and the other American 
 Commissioners that they sliould personally enjoy in France " toute 
 la surete et tons les agrements que nous y faisons eprouver aux 
 etrangers. . . . 
 
 " A conviction of the advantages to be derived from a commercial 
 intercourse with America, and a desire of weakeniug the IJritish 
 empire by dismembering it, induced the French Court secietly to 
 give assistance in military stores to the Americans, and to listen 
 to proposals of an alliance. But tliey 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 
 arras, was eventually overcome, 
 
 " Early in January, 1777, Dr. Franklin went to Versailles with 
 
 e2 
 
52 
 
 his colleagues, and according to the instructions from Congress 
 communicated to the Count de Vergennes, Minister for Foreign 
 Atfairs, certain proposals in writing to induce the Government of 
 France to take a decided part in favour of tlie 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 openlij in regard to the existing dispute. 
 France had indeed suffered so much in t!ie preceding war with 
 Great Britain that there was probably no Frenchman who did not 
 wash for a diminution of the power and resources of this nation ; 
 and there were but few who did not perceive that this reduction 
 would in a considerable degree be effected by Sk ^prolongation of the 
 subsisting contest with America, in whatever way it might ulti- 
 mately terminate ; and therefore, tliough 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 thougli 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 Storraont bad 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 
 w-as therefore secretly despatched by M. de Sartine, then Minister 
 of the Marine, to recall the French fishermen from tlie 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 which a British packet 
 going from Dover to Ostend, as well as other British vessels, liad 
 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 nu'uber 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 I\L de Yergennes affected to remonstrate 
 
 " One of the privateers commissioned by Franklin (the " Bhick Prince") took 
 in one year sevcuty-fivc sail. Memoirs, kc, ii. 217. ^ 
 
54 
 
 witli the American Commissioners, and on tlie 16tli of July, 1777, 
 wrote to tliem tliat tliey had exceeded the bounds limited at their 
 first interview with him, whicli 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 have 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 nothiug was left for her but an unconditional 
 
 submission In the midst of this supposed gloomy state of 
 
 affairs in America, the news of tlie surrender of the British army, 
 commanded by General Biirgoyne, to that of the Americans under 
 General Gates at Saratoga, on tlie 17th of October, 1777, arrived 
 in France, 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 
 iufaut 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 tliat 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 
 
 lutiou solely with a view of serving them, since, independently of 
 his real attachment to them and their cause, it was evidently the 
 interest of 1" ranee 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 tlie mother country and eventually to establish their in- 
 dependence." — (pp. 53 — 61.) 
 
 NOTE B. 
 
 The only serious diiferences 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, susj)ected 
 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 
 fi'om 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 dlfl'ereuce 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 commorant 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 country which 
 is in that unhappy condition, svibmits himself to oil 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 ^U claims which would have been barred had the act been 
 originally legal. 
 
 These are the general principles applicable to such cases. The 
 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 ; w^hile in an- 
 other case the officer who had the prisoner in charge refused, 
 under an order from the President, obedience to a writ of liabeas 
 corpus. If these acts are not illegal, the British Government has 
 no right to interfere ; if in the opinion of the British Government 
 
57 
 
 they are clearly illegal, it is warranted in interfering. Nor does 
 the plea of necessity hold good, for the President (having now a 
 stronger case than Jefferson 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 haheas coqnis, 
 is a question which cannot be discussed here. The ailirmative 
 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. Binuey, 
 a lawyer of the highest reputation, and the doyen, I believe, of the 
 American bar. It is contended in this 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 tho 
 power of suspending the common right to a haheas corpus belongs 
 exclusively to Parliament, and that of declaring martiul law has 
 not belonged to tho Sovereign since the Petition of llight. 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 has always been assumed by 
 writers on the Constitution, from Story {On tlie Constitution, 
 § 1342; his "doubt" refers to the question of eccigency) to 
 Curtis {History of the Constitution, ii. 359). They have never, as 
 far as I know, been broached iu 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 \A ell as that of the present Chief Justice of the Supreme Court, 
 who has declared that he deems tlie poiut 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 u\) 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-Federalist 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 tics which bound the States together, but i)artly also 
 on the question of constitutional law, what was the actual 
 
60 ' 
 
 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 the notes to Story's Commentaries on tJie Constitution, 
 i. 288, 289 : — " Por 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 A2Jpendix, cited by Story, I. c.) 
 That the Constitution is a federative compact was asserted by tlie 
 Legislature of Kentucky in 1797 and 1798, by that of Virginia in 
 1798, by G-eorgia 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 iu the text in its original sense. 
 
61 
 
 South, docs not mean a legal riglit. A legal riglit 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 u 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 im])ort- 
 ant only as supplying a commentary on the text and 
 throwing light on its obscure places. But the question, 
 whether a particular act be an agreement or a law, is not 
 merely, nor })rimarily, 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 establishment of the Constitution, according to 
 
the N^orth, 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 : — " The Constitution was neither made nor rati- 
 fied by the States as sovereignties or political communities. . . . 
 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 establislied by 
 tbe 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 tbe 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 theiu ; 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 tlieir 
 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 riglit to construe the Constitution for 
 itself." See also note (a), p. GO. 
 
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 
 
 opinion was advanced," says Mr. Cuitis ^, " that the co- 
 lonial governments were at an end, that all Aniciica 
 was thrown into one mass, and was in a state of natnr(% 
 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 wdiicli 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 24tli 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- 
 blished 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 arc 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, bonnd 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 with 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 nominatlm, they were never 
 ratified by the States and never presented to them for 
 ratification. 
 
 The general opinion of American lawyers is, or lately 
 was, 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 qualification 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- 
 
 r 2 
 
68 
 
 solutely independent, the strongest proof is to be found 
 in tlie 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 eff'ect 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 
 Washington said, a shadow for want of ability 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 conmion 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 Avas done was to make them real and 
 efiective 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 life 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. S3. 8—10 ; Art. iii. s. 3; Art. iv. ss. 3, 4j 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 pco})le 
 has not, and never had, any legislative power at all, 
 ^ Austin's Province of Jurisprudence determined, 222, ed. 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 hniits it is federal ^. 
 
 g Catching at the word " supreme" in Art. vi. s. 2, people some- 
 times argue that because the Constitution, which defines tlie 
 relation between the Union and the States, is declared to be 
 supreme, therefore the Union is supreme ; or that the Union is 
 supreme generally because it is so whilst acting pursuant to the 
 Constitution — that is, witliin 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 
 same 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, whicli 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 ivith three-fourths of the States as States. But 
 it does not submit, — on the contrary, it carefully guards itself from 
 submitting, to the 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 this 
 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 w^re 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, wdiich 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 North Carolina, the second by New York. " On 
 the one side," sa_ys 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 r. Earle," Peters' Iieports,ii.n\. (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. Rhode Island would have nothing to do 
 with 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, however, with New Jersey for electing 
 the House of Eepresentatives by the States, instead of by the 
 people directly, aud New York against it. 
 
75 
 
 debates in detail ; but it will be enough for our purpose 
 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 tm'ned 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 unequal representation, 
 or the people of each State, regarded as one, and as equal 
 with the people of exerj 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, Sontli 
 Carolina, and Georgia were against equality of suffrage in tlio 
 House of Representatives ; New York, New Jersey, and Delaware 
 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 ally, by the smaller States, if 
 the larger ones should dare to dissolve the confederacy by 
 insistmg 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. jNIassachusetts 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 
 
 tlier bid, wliicli was accepted. The House of Repre- 
 sentatives was to have the exclusive power of origi- 
 nating money-bills. With this addition the Ellsworth 
 pi'oposal was adopted, the larger States reluctantly 
 giving way. 
 
 The question very early arose, how the two autho- 
 lities which I have described as co-existinc; throuohout 
 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 w^ar, and would probably be considered by the 
 party attacked as a dissolution of all its constitutional 
 engagements : — words which may now be considered 
 prophetic J. The readiest and most natural way w^as 
 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 neo:ative mioht 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 w^ith the Constitution. The Eng- 
 lish Crown, as we 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, 
 > 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 pursua?ice 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 13th 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 Washington, when about to sign it, 
 rose from his seat, and, holding the pen in his hand, said, " Sliould 
 the States reject this excellent Constitution, the probability is 
 that the opportunity will never again ofier to cancel another iu 
 peace. The next will be drawn in blood." — Cwtis, 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, wall 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 clone," says j\Ir. Curtis, " by presenting 
 it for ratification to the people of each State, who pos- 
 sessed authority to vrithdraw 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 AA\4)ster 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 w^as the coadjutor, as well as the friend of Hamilton, 
 and a few weeks after he had been supporting, in Con- 
 vention, measures which would 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 joartly 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, Xo. 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 through 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 differences, but with no pedantic anxiety about 
 abstract principles, has furnished inexhaustible matter 
 for argument to those whose eyes have been fixed on 
 different 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 difference 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 tliis 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 him, — as the English Government 
 would have been warranted in hanging Washington in 
 177G, 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 seccder 
 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- 
 
 G 2 
 
84 
 
 federates is to decline its jurisdiction altogether. Ac- 
 cordingly tliey allege, in a confused way, that they have 
 a right 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 sfafus. "The Constitution lias been broken." 
 Tlie 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 concerning the surrender of fugitive 
 slaves. These laws are certainly repugnant, if not to the 
 letter of the Constitution, to its spirit". Tliey 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 tlie Constitution may be a question ; they 
 certainly run to the extre ne 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 tlie 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 metaphvsicians. But 
 we arc here infer apices juris. And to whom are they 
 addressed, these subtle and fine-drawn distinctions — this 
 nice dissection of words and analysis of ideas — these 
 dipqnisitions 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, h;,ve been ;idiniltcd 
 
 ° Art. iv. s. 2. 
 
 P This applies to r^Iaiue, YernioDt, Massacliusctts, Connecticut, 
 and AViiScoasin. 
 
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 macb 
 the theory of a social compact the basis of its insti- 
 tutions ; whicli was the first to pronuilgate formally 
 the doctrine that " all just governments derive their 
 
87 
 
 power from the consent of the governed," and has never 
 ceased to apphiud every apphcation of that doctrine 
 abroad, nor to teach and proclaim it at home. 
 
 I know, of conrse, 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 Auierican Constitution have in fact repre- 
 sented two classes of interests, two bodies of sentiment, 
 two sets of traditions and institutions, two allegiances "^ ; 
 that these diverse influences, the compromise between 
 them having at length been rudely broken, arc 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 do not use the word in its strict sense, though some States 
 (1 know not liovv many) liave 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 imperceptible 
 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 account 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 eiditeenth ccnturv 
 was spent in adjusting and re-adjusting a supposed 
 balance among the great monarchies of Europe ; and 
 we all know how I^lackstone's elegant theory of the 
 British Constitution has been destroyed by the inevit- 
 able growth of the House of Conunons. 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 re})rescnt, 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 arc armed with is less, they arc 
 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- 
 cii)le has done great service, and all that can be objected 
 
 "■ There are some good observations on tlie probability that 
 tlie States of the Union would encroach on the Federal Govcru- 
 nient, FedcraUnt, 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 " Federalist," 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 Tocqneville'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 estabhshcs 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 woidd 
 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) 
 lias 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 imaginable variety of race, 
 climate, situation, occupation, and hereditary customs, 
 vv'hich 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 hap])iness 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 poHtical discord becoming 
 
92 
 
 coincident, as he thought, with a particular geographical 
 line, that hue coinciding eastwards with the Potomac. 
 He thought that destined to be fatal^ What he antici- 
 
 ^ In 1798 he writes to a friend who had 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 rid ourselves of the present rule of 
 Massachusetts and Connecticut we break the Union, will the evil 
 stop there ? Suppose the New England States cut oif, 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 they 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 shew their power just sufficiently to hoop us together, 
 
93 
 
 pated has actually occuiTed. In 1S26 Georgia, on no 
 greater provocation than a petty quarrel about her deal- 
 it will be the liapijiest situation iu which wo can exist." — Letter 
 to Mr. Taylor, Jcjfcrsons Memoirs and Correspondence, iii. 399. 
 
 In August, 1803, when the cession of Louisiana was 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 IMississippi 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 affection 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 French 
 nation, with which he has no relations of blood or affection. The 
 future inhabitants of the Atlantic and Mississippi States will be our 
 sons. AVe 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 the 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."— 7&. 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 fratcrnism 
 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 woidd 
 
94 
 
 iiigs with the Indian tribes, threatened secession and a 
 Southern confederacy, and South Carohna 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 with 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 
 its 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 
 friends 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 liiinian 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 " ordauicd 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, 18G1. 
 
 * See Note B at the end of Lecture I. 
 
 |hiittcb bi) li^tssrs. |1nrbr, Conunurhef, (Djtforb. 
 
LRBAp'26 
 
 771^