Parties to civil war If the foreign State professes neutrality, it is bound to allow impartially to both belligerent parties the free exer- entitled to cise of those rights which war gives to public enemies rights of against each other; such as the right of blockade, and of each other. war against 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 centre 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.) In a contest wholly upon land, a contiguous State may be obliged to make the decision whether or not to regard it as 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, capturing contraband and enemy's property. (b) But the exercise of those rights, on the part of the revolting colony or province against the metropolitan country, may be modified by the obligation of treaties previously existing between that country and foreign States. (c) 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 a 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 despatches, or military persons come into play. If it is not a 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 a war, they do not come into that category, but into the category of piracy, or of crimes by municipal law. Now, all private citizens of a foreign State, and all its executive officers and judicial magistrates, look to the political department of their government to prescribe the rule of their conduct, in all their possible relations with the parties to the contest. This rule is prescribed in the best and most intelligible manner for all possible contingencies by the simple declaration, that the contest is, or is not, to be treated as war. If the state of things requires the decision, it must be made by the political department of the government. It is not fit that cases should be left to be decided as they may arise, by private citizens, or naval or judicial officers, at home or abroad, by sea or land. It is, therefore, the custom of nations for the political department of a foreign State to make the decision. It owes it to its own citizens, to the contending parties, and to the peace of the world, to make that decision seasonably. If it 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 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 organization 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 (b) Wheaton's Rep. iii. 610, United States v. Palmer; - Ib. iv. 63, The Divina Pastora; - Ib. 502, The Nuestra Signora de la Caridad. (c) See Part IV. ch. 3, § 3, Rights of War as to Neutrals. Identity how affected violence. § 24. If, on the other hand, the change be effected by external violence, as by conquest confirmed by treaties of of a State, peace, its effects upon the being of the State are to be de- by external termined by the stipulations of those treaties. The conquered and ceded country may be a portion only, or the whole of 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 warfare, with the sanction of foreign nations. They can obtain abroad loans, military and naval materials, and enlist men, as against every thing 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. This subject received a full discussion in the correspondence between Mr. Adams and Earl Russell, beginning April 7, and ending Sept. 18, 1865. The principal contest was, whether the recognition by Great Britain of belligerent rights in the rebel States was unprecedented and precipitate," as alleged by Mr. Adams. This belongs rather to history than to law; but the principles of international law applicable to the facts were adduced on each side. The rule Mr. Adams lays down is this: "Whenever an insurrection against the established government of a country takes place, the duty of governments, under obligations to maintain peace and friendship with it, appears to be, at first, to abstain carefully from any step that may have the smallest influence in affecting the result. Whenever facts occur of which it is necessary to take notice, either because they involve a necessity of protecting personal interests at home, or avoiding an implication in the struggle, then it appears to be just and right to provide for the emergency by specific measures, precisely to the extent that may be required, but no farther. It is, then, facts alone, and not appearances or presumptions, that justify action. But even these are not to be dealt with farther than the occasion demands: a rigid neutrality in whatever may be done is of course understood. If, after the lapse of a reasonable period, there be little prospect of a termination of the struggle, especially if this be carried on upon the ocean, a recognition of the parties as belligerents appears to be justifiable; and at that time, so far as I can ascertain, such a step has never in fact been objected to." He contends that the recognition of belligerent rights in the American colonies, in their war of independence, by France and Holland, was not made generally and for all purposes, but only to meet existing facts, and not until the presence of American war-vessels in their ports made a decision necessary; and that France and England alike seemed to consider that a recognition of belligerency was an unfriendly act, unless justified by necessity. He considers the belligerent rights of the South American provinces to have been recognized upon the same principles, and refers to late civil wars in Europe, involving States more or less maritime, where no such recognition had been made. He contends that the recognition in this instance created all the naval power the rebellion possessed, and was so influential upon its subsequent history that Great Britain and France are not entitled to the argument, that the event justified their action. Earl Russell does not seem to differ from Mr. Adams the vanquished State. If the former, the original State still continues; if the latter, it ceases to exist. In either case, the conquered territory may be incorporated into the conquering State as a province, or it may be united to it as a co-ordinate State with equal sovereign rights. of internal nal violence, confirmed § 25. Such a change in the being of a State may also By the joint effect be produced by the conjoint effect of internal revolution and exter- and foreign conquest, subsequently confirmed, or modified and adjusted by international compacts. Thus the by treaty. House of Orange was expelled from the Seven United Provinces of the Netherlands, in 1797, in consequence of the French Revolution and the progress of the arms of France, and a on the general principles. He contends that the state of things upon which the government was required to act had no exact parallel, and must be judged by itself. He protests that the overt and formal acts of the two parties to the war are not alone to be considered; and, referring to the extent of the territory, population, and resources of the rebellion; the existence of its completely organized State and general governments; its unequivocal determination to treat as war, by sea and land, any acts of authority which the United States, on the other hand, had equally determined to exert; the long antecedent history and preparations for this revolution; and the certainty of the magnitude and extent of the war and its rapid development whenever it should begin, and that it would require the instant decision of maritime questions by neutral vessels of war and merchantmen alike, he argues that it was necessary for England to determine at once, upon facts and probabilities, whether she should permit the right of search and blockade as acts of war, and whether the letters-of-marque or public ships of the rebels, which might appear at once in many parts of the world, should be treated as pirates or as lawful belligerOn this subject, see further Mr. Bemis's pamphlets on the Recognition of Belligerency, Boston, 1865; letter of Mr. Harcourt (“Historicus"), London Times, March 22, 1865; Lord Lyons to Lord J. Russell, April 22, 1861; Mr. Bright's speech, March 13, 1865; Earl Russell's speech, March 23, 1865; proclamations of President Lincoln of 15th and 19th April, 1861, and of Jefferson Davis, 17th April, 1861, and of Queen Victoria, 13th May, 1861. ents. As to the recognition of belligerency by France and Holland in the American Revolution, see the above correspondence between Mr. Adams and Earl Russell; the Annual Register, 1776, pp. 182, 183; 1779, p. 249; Martens' Causes Célèbres, i. 113; Baron Van Zuylen to Mr. Pike, Sept. 17, 1861, U. S. Dip. Corr. 368. Upon our claim for a recognition of our belligerency by Denmark during the war of the Revolution, and the demand for compensation for Paul Jones's prizes surrendered by Denmark to England, see Sparks's Dip. Corr. iii. 121; Sparks's Life of Franklin, viii. 407-462; U. S. Laws, vi. 61; State Papers, iii. 4; despatch of Mr. Wheaton to Mr. Upshur, Nov. 10, 1843. During the civil war between Spain and her South American colonies, the belligerency of the latter was recognized by the United States. U. S. v. Palmer, Wheaton's Rep. iii. 610; La Divina Pastora, Ib. iv. 52; La Santissima Trinidad, Ib. vii. 337; Nueva Anna, Ib. vi. 193. So in the case of the civil war between Texas and Mexico. Mr. Forsyth to the Mexican Minister, Sept. 20, 1836; Opinions of Attorneys-General, 120. iii. As to the belligerent status of the Greeks during their war with Turkey, see democratic republic substituted in the place of the ancient Dutch constitution. At the same time the Belgic provinces, which had long been united to the Austrian monarchy as a co-ordinate State, were conquered by France, and annexed to the French republic by the treaties of Campo Formio and Luneville. On the restoration of the Prince of Orange, in 1813, he assumed the title of Sovereign Prince, and afterwards King of the Netherlands; and by the treaties of Vienna, the former Seven United Provinces were united with the Austrian Low Countries into one State, under his sovereignty. (a) Here is an example of two States incorporated into one, so as to form a new State, the independent existence of each of the former States entirely ceasing in respect to the other; whilst the rights and obligations of both still continue in respect to other foreign States, except so far as they may be affected by the compacts creating the new State. In consequence of the revolution which took place in Belgium, in 1830, this country was again severed from Holland, and its independence as a separate kingdom acknowledged and guarantied by the five great powers of Europe, Austria, France, Great Britain, Prussia, and Russia. Prince Leopold of Saxe-Cobourg having been subsequently elected king of the Belgians by the national Congress, the terms and condition of the separation were stipulated by the treaty concluded on the 15th of November, 1831, between those powers and Belgium, which was declared by the conference of London to constitute the invariable basis of the separation, independence, neutrality, and state of territorial possession of Belgium, subject to such modifications as might be the result of direct negotiation between that kingdom and the Netherlands. (b) § 26. If the revolution in a State be effected by a prov- Province ince or colony shaking off its sovereignty, so long as the or colony asserting its independence of the new State is not acknowledged by independother powers, it may seem doubtful, in an international considered point of view, whether its sovereignty can be considered by other as complete, however it may be regarded by its own gov ence, how foreign States. Lord Russell's speech, May 6, 1861; Mr. Canning to Lord Granville, June 22, 1826; (a) Wheaton's Hist. Law of Nations, 492. |