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These must be examined upon principles applicable to public war. The British government has recognized the conflict as waged by one actual government against another. The Supreme Court of the United States, in Mauran vs. Insurance Company, says:
The Constitution of the United States, which is the fundamental law of each and all of them, not only afforded no countenance or authority for these proceedings, [those of the rebels,] but they were, in every part of them, in express disregard and violation of it. Still it cannot be denied that by the use of these unlawful and unconstitutional means a government, in fact, was erected greater in territory than many of the old governments in Europe, complete in the organization of all its parts, containing within its limits more than eleven millions of people, and of sufficient resources in men and money to carry on a civil war of unexampled dimensions; and during all which time the exercise of many belligerent rights were either conceded to it or were acquiesced in by the supreme government: such as the treatment of captives, both on land and sea, as prisoners of war; the exchange of prisoners; their vessels captured recognized as prizes of war and dealt with accordingly; their property seized on laud referred to the judicial tribunals for adjudication; their ports blockaded, and the blockade maintained by a suitable force and duly notified to neutral powers, the same as in open and public war. (6 Wallace, page 14.)
1.—injuries inflicted by rebel authorities or by private rebels.
Lord Stanley, afterward Earl Derby and prime minister of England, in a debate on the affairs of Greece, June 17, 1850, said:
I do not understand that where, by no fault of a government, offenses are committed against foreigners, the government is bound to indemnify those foreigners. The government is bound to afford its protection to foreigners and to its own subjects alike, but British subjects before now have been pillaged in the Roman states and the Neapolitan states, and I never heard of any demand against the government of either of those states. (Hansard, 3d series, volume 111, page 1306.)
In further support of the general proposition that no government is responsible for injuries done to the inhabitants of the country, whether citizens or foreigners, by rebels or by alien enemies exercising in the particular locality or for the time being superior force against such governments, see Rutherford’s Institutes, p. 509; Vattel, book 2, ch. 6, sec. 73; Phillimore’s International Law, vol. 1, sec. 218) — Calvo Derecho International, tom. 1, p. 387.
When there was a revolt at Leghorn, the town was taken by storm by an Austrian corps, acting as auxiliaries of the Grand Duke of Tuscany. After the town had been taken, and when resistance was over, some of these Austrian troops plundered the houses of certain British subjects. Among others, the house of a Mr. Hall was forcibly entered by a detachment, headed by an officer, which remained in the house for several hours, brought into the house the wives of the soldiers, broke open and plundered everything from the cellar to the garret, destroyed what they did not take away, carried away many of the things in the house, selling them to people at the gate, which was not far off, and returning afterward to take away other cargoes. This was done at the houses of Mr. Hall, of a widow lady, and of other persons; each of those houses having, as a matter of precaution, been marked visibly on the outside door as the residences of British subjects, under the protection of the British consul. It was for these losses that, upon legal advice, compensation had been demanded. (Hansard, 3d series, vol. 113, p. 635.)
With reference to this affair a correspondence ensued, which is cited in detail in a note to Guillaumin’s edition of Vattel, 1863, vol. 2, p. 49. It is believed that this correspondence has never appeared in England. The copy herewith submitted was translated from a Spanish-American publication. (Torres Caicedo Union—Latino, Americana, pp. 343, 348.)