practice of its prize-courts in this respect has received a sharp correction from the Privy Council (Ostsee), which has excited the lamentation of its practitioners.

1165. Your final and only sure appeal is to the supreme tribunal, the controller of prize-court doctrines, of text writers, of treaties, and diplomatists, the contemner of the practice of nations, to the reason of mankind, the law of right and wrong, the rules by which society can be best governed and the common happiness best secured, the rule of progressive science and civilization.

1166. Our arguments are multiform, and may appear to many prolix, and to some superfluous; but we have to encounter a wide-spread opinion, maintained too by the majority of modern legists, that the practice of nations has established the law of nations, and to address ourselves to various phases of the human mind. The practice to which they refer, when examined, will prove to be only the practice of the great maritime nations, adopted in the insolence of victory or the agonies of war. The proposition which we assert is, that reason is the sole arbiter, that the law of nations is an abstract principle, that the practice of nations is admissible for its interpretation only when consonant with that abstract rule.

1167. We shall have, 1st, to consider the laws of war as between the belligerents; and, 2ndly, as between the belligerent and neutral. The first head becomes subdivided into -1st, the consideration of the laws between the belligerent Powers; 2ndly, between a belligerent Power and the subjects of the enemy; 3rdly, between the belligerent Power and its own subjects; and, 4thly,*between the subjects of the antagonistic belligerent Powers. The second head is subject to the like subdivisions:-1st, the laws between the neutral and both each or either of the belligerent Powers; . 2ndly, between the neutral Power and the subjects of the belligerent; 3rdly, between the belligerent Power and the subjects of the neutral; 4thly, between the subjects of the neutral and the subjects of the belligerent.

1168. But there are two preliminary questions-1, who are entitled to be treated as belligerents; 2, the justice of the war.

1169. BELLIGERENTS.-Every nation will determine whether it will allow itself to be ranked as a neutral with each or either of the combatants, or will disclaim all relations, and regard the conduct of either or both as the conduct of rebels or pirates.

1170. A state, which has already acknowledged a country as independent, is bound by its former decision until that country has been permanently subdued, or its government effectually overturned. Every independent state at war is entitled to be regarded as a belligerent. But it is the existing government, and not the titular sovereign, which is entitled to be so regarded. Otherwise a deposed sovereign might have lawfully commissioned privateers, or a neutral might be bound to deny the political existence of the most powerful state in the world. James II. attempted the first expedient after his utter expulsion from the realm; the English held the commissions null; yet the English required the Danes to regard as piratical the whole nation of France after the execution of the king; the Dane made a noble reply.

1171. A colony, a district, a state, being a member of a federation, is in arms against the mother-country, or the kingdom, or the rest of the league: is it to be regarded as belligerent, or are all its battalions and ships of war, in respect of their captures, to be executed as rebels guilty of robbery on land, or of piratical depredations on the sea? The decision must not be capricious, a puny rebellion may assume immense proportions, a colony may subdue the parent state. The decision may sometimes be deferred, but when the question arises whether the conduct of the commissioned ships is piratical, it can be no longer delayed; the people who commissioned them are entitled to treat an adverse decision as an act of war, and to resort to retaliation.

1172. The United States of America were prompt to recognize the revolted colonies of Spain, but the remnant of those states are wroth that Europe should recognize as a belligerent power a seceding confederation with 400,000 men in arms.

1173. It is difficult to measure the strength necessary to constitute a belligerent power; but as soon as to treat its soldiers as rebels, or its sailors as pirates, becomes dangerous, as soon as it becomes formidable, a people in arms is entitled to be recognized as a belligerent power. So long as a province or colony can, by its army or navy, hold the rest of a powerful nation at bay, so long as doubt hangs over the conflict, it is entitled to be regarded as a belligerent.

1174. The belligerent power, not yet treated as an independent nation, is to be regarded as a conditional state; so long as it is recognized as a belligerent, all the laws and intercourse of war and of commerce prevail between it and the neutrals who have made the recognition, as between independent nations. Its government, its civil and military officers, and its officers of revenue are regarded as lawful functionaries. Its armies are not rebels or guerillas, its commissioned war-ships are not privateers. Santissima Trinidad.

1175. We use 66 power" in connection with belligerent to comprise the expression in the Act of Congress as to enlistment," any foreign prince or state, or any colony, district, or people," with which the neutral may be at peace; and also to comprise the expression in the English Enlistment Act,— any foreign prince, state, or potentate, foreign colony, province, or part of any province or people, or any persons or person, exercising or assuming to exercise the powers of government, in any colony, province, or part of any province or country," so far as the United States or England have recognized them as belligerents.

1176. We may observe that a protected nation does not become a belligerent by reason of war between her protector

and another nation. (Ionian ships.) She is to be regarded as neutral until she has actually taken part, or is involved by the other belligerents, in the war.

1177. JUSTICE OF THE WAR.-It is the object of each nation about to embark in a war to persuade all others of the justice of her quarrel, and to enlist their assistance, or at least their sympathies, on her side; but she reserves to herself the determination, and demands from all who remain neutral acquiescence in the alleged justice of her cause, and for the decision of this question there is no appointed tribunal, except that in some treaties there have been stipulations (1) For referring questions to arbitration; in others, (2) stipulations for limited neutral assistance, of which each of the bellicose parties is supposed to be aware; in others, (3) stipulations protecting certain countries by an absolute neutralization; and (4) in others, a guarantee of general or partial support in a just war.

1178. The first of these classes of stipulations depends for its observance on the faith of the nations in controversy. The second will have consideration under the head of confederation. The third will be discussed under that of neutralization. On the fourth, it may be sufficient to allude to the instance of the treaty of Paris, on the 30th of March, 1856, between England, Austria, France, Prussia, Russia, Sardinia, and the Sultan. By the eighth article of that treaty it is stipulated that, if there should arise between the Sultan and any one or more of the other parties to that treaty any misunderstanding which might endanger the maintenance of their relations, the Sultan, and each of those Powers, before having recourse to the use of force, shall afford the other contracting parties the opportunity of preventing such an extremity by means of their mediation.

1179. Each nation is, subject to its treaty stipulations, entitled to inquire into the justice of the actual or meditated hostilities, and their influence on her own interests and affairs, and to take part with either of the belligerents; but until

she determine to do so, whatever she may think of the justice or iniquity of the war, she is bound to act towards each belligerent as if his conduct were right, and to remain neutral, and, as to all military assistance, impartial between them.

CHAPTER VIII.

BELLIGERENTS.

1180. SOME writers start with the general proposition that the belligerent has a right to kill his enemy, and consequently regard every act short of universal murder as a concession and surrender, on his part, of the rights of war.

1181. The proposition is as untrue as it is barbarous. It has no foundation either in natural or international law. Were it true, it would justify the utmost atrocities of war; it would make the massacre of Ismail lawful, and sanction the slaughters of Zenghis Khan. It would establish them as in accord with the laws of nature, and in harmony with sentiments we should entertain. We ought not to shrink or to shudder at the names of Suwarrow and Zenghis, but to regard them as warriors exercising their natural rights.

1182. Can a man by making a quarrel acquire a right to kill? Can a nation by quarrelling acquire such a right? If it could arise on any conditions, it could arise only in favour of the injured. It would be dependent on the absolute justice of the war. A man has a right to destroy his assailant, but only when necessary for self-defence.

1183. The military right of destruction is to be exercised only by and against the military forces of the belligerents, except when either has transgressed the laws of war, and is subject to many qualifications, limited by the requisitions of necessity for martial objects, though not so strictly as the right of individual men.