tion, and especially as to the definition of the condition of affairs existing between peace and civil war. The definition of the state of insurgency generally used is that contained in the decision of the case of the Three Friends, made by Chief Justice Fuller in 1897, during the Cuban insurrection which preceded the Spanish-American War. "The distinction," the chief justice goes on to say, "between recognition of belligerency and recognition of a condition of political revolt, between recognition of the existence of war in the material sense and of war in a legal sense, is sharply illustrated by the case before us. For here the political department has not recognized the existence of a de facto belligerent engaged in hostility with Spain but has recognized the existence of insurrectionary warfare prevailing before, at the time, and since this forfeiture is alleged to have occurred."1 The proper dealing with the state of insurgency on land is well outlined in a despatch of Secretary Hay to Mr. Bridgman, minister to Bolivia in 1899, as follows: "You will understand that you can have no diplomatic relations with the insurgents implying their recognition by the United States as the legitimate government of Bolivia, but that, short of such recognition, you are entitled to deal with them as the responsible parties in local possession, to the extent of demanding for yourself, and for all Americans within reach of insurgent authority within the territory controlled by them, fullest protection foi life and property."2 The appearance of insurgent vessels of war upon the high seas flying a flag not recognized by the various sovereign states has created an anomalous condition of affairs and caused such vessels to be classed as akin to pirates. Even at so late a date as 1885 in the case of the vessel Ambrose Light it was declared by the decision of a United States court that such an insurgent armed vessel was technically a pirate. The weight of authori 1 Three Friends case (1897), Scott's "Cases," p. 743. tative opinion is now, however, against such holding, and, as Hall observes: "It is impossible to pretend that acts which are done for the purpose of setting up a legal state of things, and which may, in fact, have already succeeded in setting it up, are piratical for want of an external recognition of their validity, when the grant of that recognition is properly dependent in the main upon the existence of such a condition of affairs as can only be produced by the very acts in question. It would be absurd to require a claimant to justify his claim by doing acts for which he may be hanged. Besides, though the absence of competent authority is the test of piracy, its essence consists in the pursuit of private as contrasted with public ends." 1 The recognition of the status of insurgency by third or neutral powers does not relieve such powers from the enforcement of their neutrality laws. It relieves the insurgents from treatment as pirates and, within their territorial limits which they have acquired or are contending for, it is not too much to say that they have the right to prevent the supplying of contraband to the other belligerent from any source, but this right does not extend to the high seas nor is it accompanied with the right of general visit and search or the usual belligerent rights outside the field of their operations. The cases of insurgency afloat in recent times are as follows: In 1873 the Spanish vessels of war in Cartagena Harbor, Spain, fell into the hands of insurgents, whom the Madrid Government at once proclaimed as pirates; but the British, French, and German Governments instructed their naval commanders that they were not to be interfered with so long as the lives or property of their respective subjects were not affected. In 1877 the steamer Montezuma, a Spanish vessel, was seized by the Cuban insurgents and, under the new name of the Cespedes, was sent to attack Spanish merchantmen off the Rio Plata. The government of Spain requested Brazil to treat this 1 1 Hall, 6th ed., p. 255. vessel as a pirate if she entered Brazilian ports. This Brazil refused to do on the ground that the vessel did not fulfil the definition of a pirate and, furthermore, confined her hostilities exclusively toward Spain. In 1891 the congressional party of Chile seized the major portion of the Chilian navy, and was allowed freedom of operation by the various foreign naval forces in Chilian waters and thereabouts, excepting as to blockade against foreign vessels. The seizure of contraband in neutral vessels was, however, acquiesced in. This insurrection became finally successful, and its government was duly recognized as the titular government of Chile. In 1893 the greater part of the Brazilian fleet revolted, but, as at first in the Chilian insurrection, there was no territorial possession in the hands of the insurgents. Admiral Benham, the commander-in-chief of the American naval forces, took the ground that, during the hostilities in the harbor of Rio, any American vessels that moved about the harbor did so at their own risk, especially if they crossed the fire from the insurgents upon the city of Rio or upon the fortifications of the harbor, but that American merchant vessels were to be protected during their loading and unloading of cargo. No blockade was acknowledged as existing so far as foreign vessels were concerned. The landing of contraband or military supplies to the belligerents on shore from neutral vessels in Brazilian waters alone could be stopped by the insurgents as a logical result of their military operations. Practically the right of the insurgents to carry on hostilities afloat and ashore was recognized except toward neutrals in such matters as the right of visit and search, blockade, and, generally, as belligerents in neutral ports. Secretary Hay, in 1902, said in this connection that "to deny to an insurgent the right to prevent the enemy from receiving material aid cannot well be justified without denying the right of revolution." "Perhaps," Professor Moore says, "the clearest recognition of the state of insurgency or revolt as a distinctive condition may be found in the case of the Cuban insurrection, from 1895 to 1898. On June 12, 1895, the President of the United States issued a proclamation reciting that Cuba was 'the seat of civil disturbances, accompanied by armed resistance to the authority of the established government of Spain,' and admonishing all persons within the jurisdiction of the United States to abstain from taking part in the disturbances adversely to that government, by doing any of the acts prohibited by the neutrality laws." In his annual message of December 2, 1895, the President stated that Cuba was greatly disturbed and described the condition of things as an insurrection of flagrant condition of hostilities and a "sanguinary and fiercely conducted war." On July 27, 1896, he issued another proclamation, referring again to the civil disturbances in the island and the provisions of the neutrality laws. In his annual message of December 7, 1896, he stated that "the insurrection in Cuba still continues with all its perplexities," and reviewed the situation at length.1 In 1896 both houses of Congress passed a concurrent resolution expressing the opinion that a condition of public war existed requiring or justifying the recognition of a state of belligerency in Cuba. But the power of such recognition remained with the President, who wisely determined against such policy. Finally, on the 11th of April, 1898, President McKinley in a special message declared that the intervention of the United States in the insurrection of Cuba would be justified on the grounds of humanity, protection to our citizens, protection of our commerce, and to relieve us of a constant menace to our peace. War soon followed. 53. The State of Belligerency and Its Recognition.-A condition may be attained in an insurrection which entitles the insurgents to the status and consequent rights of belligerency. The status is that of a belligerent nation so far as Moore's "Digest," I, p. 242. warfare alone is concerned. The requirements are that a state of war exists, that the insurgents have an actual and responsible political organization for government, that they possess fixed territory with resources and population, and that they have armed forces capable of carrying on war like a state in accordance with the conventional rules of warfare on shore and afloat. The insurgent government must have the power and will to protect neutrals and to fulfil neutral obligations. If the parent state exchanges prisoners with the insurgents, exercises the right of blockade of the insurgent ports against neutral commerce, and exercises the right of searching neutral vessels at sea, these latter clinch the matter and establish the status of belligerency and make its recognition by a neutral inoffensive, especially if neutral rights and interests are affected or likely to be affected by the continuance of the war. The effect of the recognition of a state of belligerency by other states transforms the insurgents into legal belligerence and should require the parent state to treat them as such and not as traitors or pirates while the war is in operation. So far as the neutral governments and the parent state are concerned, the status of neutrality becomes effective with its limitations upon belligerents, especially as to their use of neutral territory and their conduct of war at sea. Blockades must be properly notified and declared, and neutral vessels if captured or detained must be condemned by properly constituted prize-courts in order to have a valid transfer of property. Sir Alexander Cockburn, in his opinion at the Geneva arbitration tribunal upon the question of a premature recognition of the belligerency of the Southern Confederacy, said that "the principles by 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 Sec. 23." This opinion has been generally accepted by English and Amer |