existence of a civil war, [which imports belligerents and belligerent rights,] its courts cannot consider as criminal those acts of hostility which war authorizes," (pages 635, 644,) and such was the certificate of the court. The clause in italics is the more significant in that case, because the certificate of division from the circuit, though reciting all the other circumstances of the rebellion, its new de facto government, and its independence as not established, did not allude. to the fact that recognition of belligerency had been previously accorded by our government, though it mentioned the fact of a civil war. The answer of the supreme court turned wholly on the recognition of belligerency by our government. The same principle was again applied, and the decision based entirely upon our previous recognition of belligerent rights in the revolting colonies of Spain, in the cases of The Divina Pastora, 4 Wheat. 52, 63, and The Neustra Senora de la Caridad, Id. 497, 502. The same principle was again. declared in The Santissima Trinidad, 7 Wheat. 283, 337; but in the case of The Nueva Anna, 6 Wheat. 193, where the existence of "a state of war" had not been recognized, it was held that the condemnation of prize at Galveston in 1821 was wholly void.

The case of The Invincible and the Pocket very closely resembles the present, except in the single circumstance of the previous recognition of the belligerency of Texas by our government. 3 Op. Attys. Gen. 120. In that case, during the struggle between Mexico and Texas, the Invincible, an armed cruiser of Texas, had seized the Pocket for carrying contraband goods to Mexico. On the complaint of insurers, a United States vessel had seized the Invincible as a pirate, and brought her, with her crew, into New Orleans for trial and adjudication. On reference of the matter to Attorney General Butler, for decision whether they were liable for piracy or not, he says:

* * *

"Where a civil war breaks out in a foreign nation, and part of such nation erect a distinct and separate government, and the United States, though they do not acknowledge the independence of the new government, do yet recognize the existence of a civil war, our courts have uniformly regarded each party as a belligerent nation in regard to acts done jure belli. The existence of a civil war between the people of Texas and the authorities and people of the other Mexican states was recognized by the president of the United States at an early day in the month of November last. Official notice of this fact, and of the president's intention to preserve the neutrality of the United States, was soon after given to the Mexican government. This recognition has been since repeated by numerous acts of the executive, several of which had taken place before the capture of the Pocket."

The vessel and crew were accordingly released. See, also, Dimond v. Petit, supra, p. 421. The case of The Georgiana, 9 Op. Attys. Gen. 140. The tribunal at Marseilles, in 1823, refused to adjudge a rebel South American cruiser as a pirate; but that was long after belligerent rights had been expressly accorded the colonies by this country, and impliedly by Spain herself, through her treaty with England stipulating for the latter's neutrality. See infra, p. 438. The

Huascar, in 1877, with the Peruvian insurgent Pierola and his band on board, was attempting to keep up operations against Peru, and had done some violence to British shipping. She was attacked by a British admiral, but eluded capture by running into shallow water. Sir W. HARCOURT said:

"In strictness they were pirates, and might have been treated as such; but it was one thing to assert that they had been guilty of acts of piracy, and another to advise that they should be tried for their lives and hanged at Newgate." Boyd, Int. Law, 172.

In the Case of Tivnan, 5 Best & S. 645, where some persons had come on board the American schooner Joseph E. Gerrity, in November, 1863, at Matamoras, and afterwards, upon the high seas, had violently seized her in the name of the Confederacy and set the master and officers adrift, the act was held by all the judges to be prima facie an act of piracy, and not an act of war. Pages 684, 689, 696. BLACKBURN, J., at the close of his opinion, clearly intimates that any defense of the act as a possible act of war, was dependent upon previous recognition of belligerency. He says:

"But, looking at the evidence, what was done by the prisoners is either taking the ship for plunder, which would be piracy, jure gentium, in which case there is no power vested in us by statute to give them up, or an act of war, and consequently not triable anywhere. For, although the Confederate States are not recognized as an existing power, yet they are [recognized] as belligerents."

From all these cases the implication is very strong that, in the absence of any recognition of belligerent rights by the political or executive branches of any government, the cases would have been deemed cases of piracy by the law of nations, as that of the Huascar was declared to be.

The burning of the Golden Rocket by the rebel cruiser Sumpter, in July, 1861, gave rise to several suits upon policies of insurance which had insured against "pirates;" but, by a marginal indorsement, excepted losses by capture. The causes were heard in the supreme courts of the states of Maine, Massachusetts, and Pennsylvania, in the circuit court of Massachusetts, and in the United States supreme court. In all it was held that the loss was by capture, and that upon that ground the insurance companies were not liable. In the case in Maine, (Dole v. Insurance Co., 51 Me. 465,) DAVIS, J., delivering the opinion, held the case piracy also. In the circuit court, (Dole v. Insurance Co., 2 Cliff. 394,) CLIFFORD, J., held it not piracy within the meaning of a commercial document issued before the war broke out. And the same view is intimated in Dole v. Insurance Co., 6 Allen, 373, 392. In Fifield v. Insurance Co., 47 Pa. St. 166, the views of the different judges were quite diverse; the majority regarded the act of the Sumpter as a belligerent capture, under the president's mode of treatment of the case. In the supreme court, (Mauran v. Insurance Co., 6 Wall. 1,) the case, as in the other courts, was exhaust

ively argued in both of its aspects, by Messrs. Dana, Gray, and Caleb Cushing, on one side, and Messrs. B. R. Curtis and Storrow, on the other. In that argument I find one point on each side, touching the question here discussed, that seems to me an exact statement of the law. The latter say, (page 7:)

"No authority can be produced to show that a capture under a commission issued by a regularly organized de facto government, engaged in open and actual war, to cruise against its enemy, and against its enemy only, is piracy, under the laws of nations."

This is true, when that state of things can be recognized by the court; but no foreign court has authority to treat revolters as a “regularly organized de facto government," or to recognize "open and actual war," or the parent government as an "enemy," in advance of the action of the political or executive department. In that case recognition of the Confederates had already become general at home and abroad. The plaintiff's point in the same case is equally true:

"Looking to all the conditions of the rebellion, cruising by rebels who are as yet unacknowledged by anybody, even as a de facto government, would be cruising without being authorized by any sovereign, and so would be piracy by the law of nations." Page 4.

Both sides, it will be observed, either expressly or by implication, made the legal situation depend upon previous recognition of belligerency. So, in the treatment of the case by CLIFFORD, J., the previous recognition of belligerency, not by foreign powers only, but by the United States itself, is manifestly made the turning point, (2 Cliff. 420-425;) and in 6 Allen, 392, the supreme court of Massachusetts adverted to the fact that the rebel cruisers had been recognized abroad as "entitled to the privileges of a belligerent power. In the opinion of the supreme court, the question of "capture" only was considered, and the south was held to constitute such a de facto ruling power as to make the case one of technical "capture," and therefore within the exception of the policy. So, too, in various cases that have arisen in our courts out of violent acts on land during the late rebellion; though there is some difference of opinion. whether the rebels had any good legal defense for such acts done in course of war, yet the authorities that hold the affirmative rest the defense upon the recognition of belligerency. Thus, in Smith v. Brazelton, 1 Heisk. 44, it is said: "But homicide, by any person forming. part of a belligerent army, recognized as such, is not murder, when committed in due course of war." See Whart. Crim. Law, SS 283, 1866; Whart. Hom. § 13, note; Gunter v. Patton, 2 Heisk. 261; U. S. v. Greathouse, 2 Abb. (U. S.) 364; U. S. v. Hutchings, 2 Wheeler, Crim. Cas. 543, 546; Whiting, War Powers, note to 43d Ed. p. 391, (1870.) See Hickman v. Jones, 9 Wall. 197; The Amy Warwick, 2 Spr. 132. But killing even an alien enemy, unless such killing is in the actual exercise of war, would be murder. 1 Hale, 433; State, etc., v. Gut, 13 Minn. 341, (Gil. 315.)

Huascar, in 1877, with the Peruvian insurgent Pierola and his band on board, was attempting to keep up operations against Peru, and had done some violence to British shipping. She was attacked by a British admiral, but eluded capture by running into shallow water. Sir W. HARCOURT said:

"In strictness they were pirates, and might have been treated as such; but it was one thing to assert that they had been guilty of acts of piracy, and another to advise that they should be tried for their lives and hanged at Newgate." Boyd, Int. Law, 172.

In the Case of Tirnan, 5 Best & S. 645, where some persons had come on board the American schooner Joseph E. Gerrity, in November, 1863, at Matamoras, and afterwards, upon the high seas, had violently seized her in the name of the Confederacy and set the master and officers adrift, the act was held by all the judges to be prima facie an act of piracy, and not an act of war. Pages 684, 689, 696. BLACKBURN, J., at the close of his opinion, clearly intimates that any defense of the act as a possible act of war, was dependent upon previous recognition of belligerency. He says:

"But, looking at the evidence, what was done by the prisoners is either taking the ship for plunder, which would be piracy, jure gentium, in which case there is no power vested in us by statute to give them up, or an act of war, and consequently not triable anywhere. For, although the Confederate States are not recognized as an existing power, yet they are [recognized] as belligerents."

From all these cases the implication is very strong that, in the absence of any recognition of belligerent rights by the political or executive branches of any government, the cases would have been deemed cases of piracy by the law of nations, as that of the Huascar was declared to be.

The burning of the Golden Rocket by the rebel cruiser Sumpter, in July, 1861, gave rise to several suits upon policies of insurance which had insured against "pirates;" but, by a marginal indorsement, excepted losses by capture. The causes were heard in the supreme courts of the states of Maine, Massachusetts, and Pennsylvania, in the circuit court of Massachusetts, and in the United States supreme court. In all it was held that the loss was by capture, and that upon that ground the insurance companies were not liable. In the case in Maine, (Dole v. Insurance Co., 51 Me. 465,) DAVIS, J., delivering the opinion, held the case piracy also. In the circuit court, (Dole v. Insurance Co., 2 Cliff. 394,) CLIFFORD, J., held it not piracy within. the meaning of a commercial document issued before the war broke out. And the same view is intimated in Dole v. Insurance Co., 6 Allen, 373, 392. In Fifield v. Insurance Co., 47 Pa. St. 166, the views of the different judges were quite diverse; the majority regarded the act of the Sumpter as a belligerent capture, under the president's mode of treatment of the case. In the supreme court, (Mauran v. Insurance Co., 6 Wall. 1,) the case, as in the other courts, was exhaust

ively argued in both of its aspects, by Messrs. Dana, Gray, and Caleb Cushing, on one side, and Messrs. B. R. Curtis and Storrow, on the other. In that argument I find one point on each side, touching the question here discussed, that seems to me an exact statement of the law. The latter say, (page 7:)

"No authority can be produced to show that a capture under a commission issued by a regularly organized de facto government, engaged in open and actual war, to cruise against its enemy, and against its enemy only, is piracy, under the laws of nations."

This is true, when that state of things can be recognized by the court; but no foreign court has authority to treat revolters as a “regularly organized de facto government," or to recognize "open and actual war," or the parent government as an "enemy," in advance of the action of the political or executive department. In that case recognition of the Confederates had already become general at home and abroad. The plaintiff's point in the same case is equally true:

"Looking to all the conditions of the rebellion, cruising by rebels who are as yet unacknowledged by anybody, even as a de facto government, would be cruising without being authorized by any sovereign, and so would be piracy by the law of nations." Page 4.

Both sides, it will be observed, either expressly or by implication, made the legal situation depend upon previous recognition of belligerency. So, in the treatment of the case by CLIFFORD, J., the previous recognition of belligerency, not by foreign powers only, but by the United States itself, is manifestly made the turning point, (2 Cliff. 420-425;) and in 6 Allen, 392, the supreme court of Massachusetts adverted to the fact that the rebel cruisers had been recognized abroad as "entitled to the privileges of a belligerent power." In the opinion of the supreme court, the question of "capture" only was considered, and the south was held to constitute such a de facto ruling power as to make the case one of technical "capture," and therefore within the exception of the policy. So, too, in various cases that have arisen in our courts out of violent acts on land during the late rebellion; though there is some difference of opinion whether the rebels had any good legal defense for such acts done in course of war, yet the authorities that hold the affirmative rest the defense upon the recognition of belligerency. Thus, in Smith v. Brazelton, 1 Heisk. 44, it is said: "But homicide, by any person forming part of a belligerent army, recognized as such, is not murder, when committed in due course of war." See Whart. Crim. Law, §§ 283, 1866; Whart. Hom. § 13, note; Gunter v. Patton, 2 Heisk. 261; U. S. v. Greathouse, 2 Abb. (U. S.) 364; U. S. v. Hutchings, 2 Wheeler, Crim. Cas. 543, 546; Whiting, War Powers, note to 43d Ed. p. 391, (1870.) See Hickman v. Jones, 9 Wall. 197; The Amy Warwick, 2 Spr. 132. But killing even an alien enemy, unless such killing is in the actual exercise of war, would be murder. 1 Hale, 433; State, etc., v. Gut, 13 Minn. 341, (Gil. 315.)