"When a civil war rages in a foreign nation, one part of which separates itself from the old-established government Action of the Courts. and erects itself into a distinct government, the courts of the Union must view such newly constituted government as it is viewed by the legislative and executive departments of the Government of the United States. If the Government of the Union remains neutral, but recognizes the existence of a civil war, the courts of the Union can not consider as criminal those acts of hostility which war authorizes, and which the new government may direct against its enemy." United States r. Palmer (1818), 3 Wheaton, 610, 643. Cited by Wirt, Attorney-General, Nov. 6, 1818, 1 Op. 249. See, also, Rose v. Himely, 4 Cranch, 242; Gelston r. Hoyt, 3 Wheat. 247. "The decision at the last term, in the case of the United States v. Palmer, establishes the principle that the Government of the United States, having recognized the existence of a civil war betwen Spain and her colonies, but remaining neutral, the courts of the Union are bound to consider as lawful those acts which war authorizes, and which the new governments in South America may direct against their enemy. Unless the neutral rights of the United States, as ascertained by the law of nations, the acts of Congress, and treaties with foreign powers, are violated by the cruisers sailing under commissions from those governments, captures made by them are to be regarded by us as other captures, jure belli, are regarded.” The Divina Pastora (1819), 4 Wheat. 52, 63. See Nueva Anna, 6 Wheat. 193; La Santissima Trinidad, 7 Wheat. 337. Message, March 8, 1822. "As soon as the [revolutionary] movement assumed such a steady and consistent form as to make the success of the provPresident Monroe's inces probable, the rights to which they were entitled by the law of nations, as equal parties to a civil war, were extended to them. Each party was permitted to enter our ports with its public and private ships, and to take from them every article which was the subject of commerce with other nations. Our citizens also have carried on commerce with both parties, and the Government has protected it with each in articles not contraband of war. Through the whole of this contest the United States have remained neutral, and have fulfilled with the utmost impar tiality all the obligations incident to that character." President Monroe, special message, March 8, 1822, recommending the adop tion of measures with a view to the recognition of the independence of the Spanish provinces in America. (Am. State Papers, For. Rel. IV. 818.) President Woolsey criticises the first sentence in this passage, as follows: "This rule breaks down in several places. The probability is a creature of the mind, something merely subjective, and ought not to enter into a definition of what a nation ought to do. Again, the success does not depend on steadiness and consistency of form only, but on relative strength of the parties. If you make probability of success the criterion of right in the case, you have to weigh other circumstances before being able to judge which is most probable, success or defeat. Would you, if you conceded belligerent rights, withdraw the concession whenever success ceased to be probable? And, still further, such provinces in revolt are not entitled by the law of nations to rights as equal parties to a civil war. They have properly no rights, and the concession of belligerency is not made on their account, but on account of considerations of policy on the part of the state itself which declares them such, or on grounds of humanity." (Int. Law, App. III., note 19.) In the case of the Three Friends (166 U. S. 63), government counsel specially examined the course of the United States with reference to the recognition of the belligerency of Latin-American insurgents during the first quarter of the nineteenth century. In the brief for the government the various contesting bodies in 1817 were classified as (1) the "leading Spanish-American colonies, whose position as belligerents was in doubt;" (2) "certain Spanish or Portuguese districts whose belligerency had not then been and never was recognized;" (3) Hayti; (4) Amelia Island and Galveston. The administration of President Madison came to an end March 4, 1817; and whether the belligerency of the South American revolutionists was recognized by that Administration depended, said government counsel, on the formalities essential to such recognition. Judge Benedict had taken the ground that a public proclamation by the Executive, or some public act by necessary implication equivalent to such a proclamation, was essential. (The Conserva, 38 Fed. Rep. 431, 437.) Mr. Clay had impliedly maintained the same view. (Annals of Congress, March 18, 1818, p. 1415.) President Monroe, in his message of Dec. 2, 1817, took the contrary view. As "Spanish or Portuguese districts," whose belligerency was not recognized, were specified Paraguay (Am. State Papers, For. Rel. IV. 219, 222, 225, 250, 265, 278, 339) and the Oriental Republic of Artigas. (Am. State Papers, For. Rel. IV. 173–4, 218, 219, 221, 225, 250, 268, 274, 288, 289; H. Ex. Doc. 53, 32 Cong. 1 sess. 193-200; The Gran Para, 7 Wheat. 471, 509; Wirt, At.-Gen., 1 Op. 249.) Nor was the belligerency of the Haytian chieftains recognized. (Wirt, At.-Gen., 1 Op. 249; Annals of Congress, March 18, 1818, p. 1245.) The partisans or freebooters at Amelia Island and Galveston were treated as pirates, though their principal leader, Aury, claimed the right to fly the Venezuelan, Artigan, and other revolutionary flags. (Wharton, Int. Law Dig. § 50 a.) "The states," said government counsel, "whose belligerency was recognized by Monroe in 1817 were doubtless those whose independence was recognized in 1822, namely, New Granada and Venezuela * * Buenos Ayres, * * * * and Chili-the successful revolts of Peru and Mexico having been later than 1817. That the recognition of belligerency did not apply to all the minor insurgencies has been expressly ruled by this court in The Nueva Anna and Liebre, 6 Wheat. 193." Hospitality to 4. REVOLUTION IN TEXAS. $62. "It has never been held necessary, as a preliminary to the extension of the rights of hospitality to either [of the parties to a civil contest], that the chances of the war should be balanced and the probability of eventual success determined. For this purpose it has been deemed sufficient that the party had declared its independence and at the time was actually maintaining it. Such having been the course hitherto pursued by this Government, however important it might be to consider the probability of success, if a question should arise as to the recognition of the independence of Texas, it is not to be expected that it should be made a prerequisite to the mere exercise of hospitality implied by the admission of the vessels of that country into our ports. The declaration of neutrality by the President in regard to the existing contest between Mexico and Texas was not intended to be confined to the limits of that province or of the theater of war,' within which it was hardly to be presumed that any collision would occur or any question on the subject arise, but it was designed to extend everywhere and to include as well the United States and their ports as the territories of the conflicting parties. The exclusion of the vessels of Texas, while those of Mexico are admitted, is not deemed compatible with the strict neutrality which it is the desire and the determination of this Government to observe in respect to the present contest between those countries; nor is it thought necessary to scrutinize the character or authority of the flag under which they may sail, or the validity of the commission under which they may be commanded, when the rights of this country and its citizens are respected and observed. In this frank expression of the views and policy of the United States in regard to a matter of so much interest as the war now waging between Mexico and its revolted province, it is hoped that new evidence will be perceived, not only of the consistency and impartiality of this Government in its relations. with foreign countries, but of the sincere desire which is entertained, by such an exposition of its course, to cherish and perpetuate that friendly feeling, which will see in the scrupulous regard that is paid to the rights of other, and even of rival, parties, one of the surest guarantees that its own will continue to be respected.” Mr. Forsyth, Sec. of State, to Mr. Gorostiza, Mexican minister, Sept. 20, 1836, The note of Mr. Forsyth was written in reply to a complaint of Mr. Gorostiza and would not admit them to the rights of belligerents outside the territory which was the "theater of war." Quoting, in support of these positions, Mr. Monroe's statement that the United States had treated the South Americans as equal parties to a civil war as soon as the revolutionary movement had assumed “such a steady and consistent form as to make the success of the provinces probable," Mr. Gorostiza observed that there was "a great interval" between the commencement of that movement and the period at which its success seemed to be probable; that the United States meanwhile preserved a mere “neutrality of expectancy for the purpose of seeing whether those provinces did, or did not, possess the means of emancipating themselves," and that the Texan revolt had not reached the stage at which the Spanish Americans had arrived when belligerent rights were accorded them. (Mr. Gorostiza to Mr. Forsyth, Sept. 12, 1836, S. Ex. Doc. 1, 24 Cong. 2 sess. 74.) Replying to this, Mr. Forsyth, in a passage immediately preceding that above quoted, says: "The course pursued by the collector of New York, in declining to exclude the vessel in question, which bore a flag alleged to be that of Texas, and the commander of which exhibited a commission purporting to be from the President of that country, or to seize or otherwise molest her after she had entered, was in accordance with the principles and practice which have been invariably observed by this Government from the breaking out of the revolution among the Spanish provinces on this continent to the present time. There is nothing contradictory of this position in the passage which Mr. Gorostiza has quoted from the message of Mr. Monroe, then President of the United States, to Congress of the 8th of March, 1822, when properly understood and construed in connection with the antecedent acts and declarations of the Executive. It is obvious that the exclusion of the vessels of the one party from the ports of the United States, and the admission of those of the other, would be inconsistent with an impartial neutrality; and yet the President, in the same message from which Mr. Gorostiza has quoted, states that 'through the whole of this contest the United States have remained neutral, and have fulfilled with the utmost impartiality all the obligations incident to that character.' In a previous message, of December 7th, 1819, he observes: 'In the civil war existing between Spain and the Spanish provinces in this hemisphere, the greatest care has been taken to enforce the laws intended to preserve an impartial neutrality. Our ports have continued to be equally open to both parties and on the same conditions.' This language plainly refers to the whole of the contest; and the President is not be understood, in his subsequent message, to which Mr. Gorostiza has referred, as intending to say that the vessels of either party were only permitted to enter the ports of the United States from the period when the success of such party is probable. The construction which Mr. Gorostiza has given to the particular passage he has cited is not only contradicted by other passages from the messages of the same executive officer, but still more strongly, if possible, by the uniform acts of this Government in that and similar cases. It is a well-known fact that the vessels of the South American provinces were admitted into the ports of the United States, under their own or any other flags, from the commencement of the revolution; and it is equally true that throughout the various civil contests that have taken place at different periods among the states that sprung from that revolution the vessels of each of the contending parties have been alike permitted to enter the ports of this country." (S. Ex. Doc. 1, 24 Cong. 2 sess. 81-82.) H. Doc. 551—12 When this passage was written, it is not probable that Mr. Forsyth had before him the letter of Mr. Dallas to Mr. Duplessis of July 3, 1815, which appears to have been the first official order for the extension of hospitality in ports of the United States to vessels flying South American flags. The letter had not been printed in any public document. It is possible, however, that such vessels were in fact admitted by the customs officers at some ports before any order on the subject was issued by the Treasury; and it may in any event be said that the statement of Mr. Forsyth to Mr. Gorostiza is supported by passages in the messages of President Monroe of 1817 and 1822. Duty of Parent * * * "It is now several years since the independence of Texas, as a separate government, has been acknowledged by the United States, and she has since been recognized in that character by several of the most considerable powers of Europe. No effort for the subjugation of Texas has been made by Mexico from the time of the battle of San Jacinto, on the 21st day of April, 1836, until the commencement of the present year; and during all this period Texas has maintained an independent government, carried on commerce, and made treaties with nations in both hemispheres, and kept aloof all attempts at invading her territory. If, under these circumstances, any citizen of the United States in whose behalf this Government has a right on any account or to any extent to interfere, should, on a charge of having been found with an armed Texan force acting in hostility to Mexico, be brought to trial and punished as for a violation of the municipal laws of Mexico, or as being her subject engaged in rebellion, after his release has been demanded by this Government, consequences of the most serious character would certainly ensue." Mr. Webster, Sec. of State, to Mr. Thompson, minister to Mexico, April 15, 1842, Webster's Works, VI. 427, 434-435, in relation to citizens of the United States who were captured with the Texan expedition to Santa Fé, but who, as was believed, were not in any hostile sense parties to that expedition. 5. BUENOS AYRES AND MONTEVIDEO, 1844. § 63. Duty of Neutral May 23, 1845, Mr. Bancroft, Secretary of the Navy, preferred against Captain Philip F. Voorhees a charge which, while in form a charge of disobedience of orders, embraced the substance of complaints made by the Argentine Confederation and its ally, General Oribe, of a violation by that officer of their belligerent rights. In March, 1844, Captain Voorhees was dispatched in the frigate Congress, by his commanding officer, Commodore Daniel Turner, to Montevideo, with orders to protect the commerce and interests of the United States in that quarter, and in so doing "to be extremely particular in all his official and private intercourse with the Montevidean and Buenos Ayrean governments," and |