done by your addressing a note to the Dominican minister of foreign relations." (Mr. Hay, Secretary of State, to Mr. Powell, minister to Santo Domingo, October 19, 1899, For. Rel. 1899, 248, 249.) Subsequently Mr. Powell was directed to carry out this instruction by entering into relations with the government established under President Jimenez. (Mr. Hay, Secretary of State, to Mr. Powell, minister to Santo Domingo, January 5, 1900, For. Rel. 1899, 253.) President Jimenez was publicly inaugurated November 15, 1899, and duly appointed a cabinet. (For. Rel. 1899, 251.) "This Government has never recognized Cabral as even entitled to the rights of a belligerent. Certainly, therefore, it can not acknowledge any claim of his to rule any part of the territory of the Dominican Republic. It is perhaps superfluous to add that this Government has no connection, direct or indirect, with the association which has bought or leased from Baez certain territory around the Bay of Samana. The enterprise adverted to has no other claims upon us than other similar enterprises of citizens of the United States in foreign countries, which must be undertaken at their own risk and subject to the laws of such countries." (Mr. Fish, Sec. of State, to Mr. Bassett, Mar. 26, 1873, MS. Inst. Hayti, I. 287.)

IV. RECOGNITION OF BELLIGERENCY.

1. CONDITIONS AND EFFECTS OF RECOGNITION.

$ 59.

It is only in recent times, with the development of the system of neutrality, that the subject of the recognition of belligerency has acquired scientific precision and consistency. Where the armed conflict is between independent nations, no embarrassment arises, since the parties, whenever the existence of a state of war is duly established, immediately become entitled to the rights of belligerents. But in the case of insurrection or revolt the question is less simple. It is said to have been "the constant practice of European nations, and of the United States, to 'look upon belligerency as a fact rather than a principle,' holding with Mr. Canning that 'a certain degree of force and consistency acquired by a mass of population engaged in war entitled that population to be treated as belligerent."" The determination, however, of the question whether such a condition has been attained involves various considerations, which will be presented below.

The mere recognition of the existence of a condition of hostilities, or war de facto, does not imply the recognition of a legal state of war, the parties to which are to be treated as belligerents." "A war de facto then [1804] unquestionably existed between France and St. Domingo;" e and yet the United States not only refused to recognize the insurgents as belligerents, but also forbade intercourse with them."

a Abdy's Kent (1878), 94, citing Hansard, CLXII. 1566.
The Three Friends, 166 U. S. 1.

© Marshall, C. J., Rose v. Himley (1808), 4 Cranch, 239, 272.
d Moore, Int. Arbitrations, V. 4476–4477.

"Belligerency is recognized when a political struggle has attained a certain magnitude and affects the interests of the recognizing power; and in the instance of maritime operations recognition may be compelled, or the vessels of the insurgents, if molesting third parties, may be pursued as pirates.

The Three Friends (1897), 166 U. S. 1, 63.

"The recognition of belligerency involves the rights of blockade, visitation, search and seizure of contraband articles on the high seas, and abandonment of claims for reparation on account of damages suffered by our citizens from the prevalence of warfare."

The Three Friends (1897), 166 U. S. 1, 63.

Recognition of belligerency "does not confer upon the community recognized all the rights of an independent state, but it grants to its government and subjects the rights and imposes upon them the obligations of an independent state in all matters relating to the war."

Lawrence, Principles of International Law, § 162.

Whether a sovereign, who is endeavoring to reduce his revolted subjects to obedience, assumes to exercise in a particular instance the rights of sovereignty or the rights of belligerency must be determined by "the character of the act. If as a legislator he publishes a law ordaining punishments for certain offences, which law is to be applied by the courts, the nature of the law, and of the proceedings under it, will decide whether it is an exercise of belligerent rights or exclusively of his sovereign power."

Marshall, C. J., Rose v. Himely (1808), 4 Cranch, 239, 272.

"The occasion for the accordance of belligerent rights arises when a civil conflict exists within a foreign state. The reason which requires and can alone justify this step by the government of another country is that its own rights and interests are so far affected as to require a definition of its own relations to the parties. Where a parent government is seeking to subdue an insurrection by municipal force, and the insurgents claim a political nationality and belligerent rights which the parent government does not concede, a recognition by a foreign state of full belligerent rights, if not justified by necessity, is a gratuitous demonstration of moral support to the rebellion and of censure upon the parent government. But the situation of a foreign state with reference to the contest, and the condition of affairs between the contending parties, may be such as to justify this act. It is important, therefore, to determine what state of affairs, and what relations of the foreign state, justify the recognition.

"It is certain that the state of things between the parent state and insurgents must amount, in fact, to a war, in the sense of international law--that is, powers and rights of war must be in actual exercise; otherwise the recognition is falsified, for the recognition is of a fact. The tests to determine the question are various, and far more decisive where there is maritime war and commercial relations with foreigners. Among the tests are the existence of a de facto political organization of the insurgents sufficient in character, population, and resources to constitute it, if left to itself, a state among the nations, reasonably capable of discharging the duties of a state; the actual employment of military forces on each side, acting in accordance with the rules and customs of war, such as the use of flags of truce, cartels, exchange of prisoners, and the treatment of captured insurgents by the parent state as prisoners of war; and, at sea, employment by the insurgents of commissioned cruisers, and the exercise by the parent government of the rights of blockade of insurgent ports against neutral commerce, and of stopping and searching neutral vessels at sea. If all these elements exist, the condition of things is undoubtedly war; and it may be war before they are all ripened into activity.

"As to the relation of the foreign state to the contest, if it is solely on land, and the foreign state is not contiguous, it is difficult to imagine a call for the recognition. If, for instance, the United States should formally recognize belligerent rights in an insurgent community at the center of Europe, with no seaports, it would require a hardly supposable necessity to make it else than a mere demonstration of moral support. But a case may arise where a foreign state must decide whether to hold the parent state responsible for acts done by the insurgents, or to deal with the insurgents as a de facto government. (Mr. Canning to Lord Granville on the Greek war, June 22, 1826.) If the foreign state recognizes belligerency in the insurgents, it releases the parent state from responsibility for whatever may be done by the insurgents, or not done by the parent state where the insurgent power extends. (Mr. Adams to Mr. Seward, June 11, 1861, Dip. Corr., 105.) Ina contest wholly upon land a contiguous state may be obliged to make the decision whether or not to regard it as a war; but, in practice, this has not been done by a general and prospective declaration, but by actual treatment of cases as they arise. Where the insurgents and the parent state are maritime, and the foreign nation has extensive commercial relations and trade at the ports of both, and the foreign nation and either or both of the contending parties have considerable naval force, and the domestic contest must extend itself over the sea, then the relations of the foreign state to this contest are far different.

"In such a state of things the liability to political complications, and the questions of right and duty to be decided at once, usually away from home, by private citizens or naval officers, seem to require an authoritative and general decision as to the status of the three parties

involved. If the contest is a war, all foreign citizens and officers, whether executive or judicial, are to follow one line of conduct; if it is not a war, they are to follow a totally different line. If it is a war the commissioned cruisers of both sides may stop, search, and capture the foreign merchant vessel, and that vessel must make no resistance and must submit to adjudication by a prize court; if it is not a war, the cruisers of neither party can stop or search the foreign merchant vessel; and that vessel may resist all attempts in that direction, and the ships-of-war of the foreign state may attack and capture any cruiser persisting in the attempt. If it is war, foreign nations must await the adjudication of prize tribunals; if it is not war, no such tribunal can be opened. If it is war, the parent state may institute a blockade jure gentium of the insurgent ports, which foreigners must respect; but if it is not a war, foreign nations having large commercial intercourse with the country will not respect a closing of insurgent ports by paper decrees only. If it is a war, the insurgent cruisers are to be treated by foreign citizens and officials, at sea and in port, as lawful belligerents; if it is not a war, those cruisers are pirates, and may be treated as such. If it is a war, the rules and risks respecting carrying contraband, or dispatches, or military persons, come into play; if it is not war, they do not. Within foreign jurisdiction, if it is a war, acts of the insurgents in the way of preparation and equipments for hostility may be breaches of neutrality laws; while, if it is not war, they do not come into that category, but under the category of piracy or of crimes by municipal law. If it [the political department of a foreign government] issues a formal declaration of belligerent rights prematurely, or in a contest with which it has no complexity, it is a gratuitous and unfriendly act. If the parent government complains of it, the complaint must be made upon one of these grounds. To decide whether the recognition was uncalled for and premature requires something more than a consideration of proximate facts and the overt and formal acts of the contending parties. The foreign state is bound and entitled to consider the preceding history of the parties; the magnitude and completeness of the political and military organizations and preparations on each side; the probable extent of the conflict by sea and land; the probable extent and rapidity of its development; and, above all, the probability that its own merchant vessels, naval officers, and consuls may be precipitated into sudden and difficult complications abroad. The best that can be said is that the foreign state may protect itself by a seasonable decision-either upon a test case that arises or by a general prospective decision-while, on the other hand, if it makes the recognition prematurely, it is liable to the suspicion of an unfriendly purpose to the parent state. The recognition of belligerent rights is not solely to the advantage of the insurgents. They gain the great advantage of a recognized status, and the opportunity to employ commissioned cruisers at sea, and to exert all the powers known to maritime

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warfare, with the sanction of foreign nations. They can obtain abroad loans, military and naval materials, and enlist men, as against everything but neutrality laws; their flag and commissions are acknowledged, their revenue laws are respected, and they acquire a quasi-political recognition. On the other hand, the parent government is relieved from responsibility for acts done in the insurgent territory; its blockade of its own ports is respected; and it acquires a right to exert against neutral commerce all the powers of a party to a maritime war."

Note of Mr. Dana, Dana's Wheaton, § 23, p. 34.

"The principles by

Sir Alexander Cockburn, in his opinion at Geneva, says:
which a neutral state should be governed as to the circumstances under
which, or the period at which, to acknowledge the belligerent status of
insurgents have been nowhere more fully and ably, or more fairly, stated
than by Mr. Dana, in his edition of Wheaton, in a note to section 23."
See Lawrence, Principles of Int. Law, § 163.

2. THE AMERICAN REVOLUTION.

§ 60.

Turning to the precedents, we find, as has been intimated, little of definite value in the earlier cases. "In the year 1779," said Mr. Wheaton, with reference to the American Revolution, "the United States constituted a confederation of States, sovereign de facto, and engaged in war with Great Britain, in which the rights of war were acknowledged by the parent country itself, in the solemn exchange of prisoners by regular cartels; in the respect shown to conventions of capitulation concluded by British generals, and in the exercise of other commercia belli usually practised and recognized between civilized nations." a But, both before and after 1779, the course of foreign governments toward the United States was varying and uncertain. The Com

a Mr. Wheaton, minister to Prussia, to Mr. Upshur, Sec. of State, No. 233, Aug. 23, 1843, H. Ex. Doc. 264, 28 Cong. 1 sess. 6. Immediately following the passage above quoted, Mr. Wheaton says: "The United States were associated, in the war against Great Britain, with two of the greatest powers of Europe-France and Spainboth of which had acknowledged their independence, whilst the former had concluded with them a treaty of intimate alliance." These statements are not altogether accurate. Spain did not acknowledge the independence of the United States pending hostilities. As late as March 30, 1782, Montmorin, the French ambassador at Madrid, wrote that the Count de Florida Blanca regarded the independence of the United States with "much indifference and perhaps fear;" that he had never wished to declare himself openly for the United States, and even now he seems to draw himself away from them still more." (Dip. Cor. Am. Rev., Wharton, V. 287– 289.) It may also be misleading to couple France and Spain as powers with which the United States was "associated" in the war against Great Britain. While Spain, at the solicitation of France, gave the United States in an early stage of the American conflict some pecuniary aid, she afterwards declined to give further assistance or to form any connection with the United States; and when, in June, 1779, she proceeded to engage in hostilities against Great Britain, she did so for purposes of her own, and without any concert or connection with the United States.