and apply to them its penal law,' and is subject to such responsibility as arises out of a proven want of diligence to prevent their acts, and in some cases, it has been held, out of the failure to punish the guilty offenders. There is some support for the doctrine which has been advanced that a government can avoid responsibility for the acts of insurgents by extending recognition or treating them in fact as a belligerent party. After recognition of belligerency begins, the parent government is no longer liable, under any circumstances, for any of the acts of unsuccessful insurgents, nor for its own failure to act whereever the insurgent power extends. If the revolutionists are successful, as will be seen, the government created through their efforts must assume responsibility for their acts. Recognition does not affect the liability of the parent government for the acts of its own agents and authorities. The seizure of neutral property by regular government forces or depredations by officered soldiers of the government impose liability upon the state at all times.

4

The effect of a continuous residence by aliens in the territory rent by civil war is to place them for practically all purposes in the same legal position as nationals. By remaining, they assume the risk of injury, within the limitations prescribed by the rules of war. No doctrine

1 Although the government on principle may treat rebels as it sees fit, the United States intervened in Nicaragua in behalf of Cannon and Groce (two American adventurers fighting with the rebels), demanding indemnities for their summary execution by the parent government, on the ground that the laws of war had been violated in their execution without trial—and this notwithstanding the fact that the rebels were not recognized by anyone as belligerents. 4 A. J. I. L. (1910), 674; 35 Law. Mag. & Rev. (1910), 203.

2 De Brissot (U. S.) v. Venezuela, Dec. 5, 1885, Opinions of Commission, 481-482, Moore's Arb. 2949, 2968; Venezuela Steam Transportation Company (U. S.) v. Venezuela, Moore's Arb. 1693 (acts due to government negligence and impliedly ratified); Montijo (U. S.) v. Colombia, Moore's Arb. 1421 (piratical acts of insurgents not punished). Mr. Fish, Sec'y of State, to Mr. Foster, July 15, 1875, Moore's Dig. VI, 980. Cases of this kind, where the uprising was for political ends, must be considered as exceptional.

3 Rougier, op. cit., 478.

* Mr. Adams, Minister to England, to Mr. Seward, Sec'y of State, June 14, 1861, Moore's Dig. VI, 956; 18 Annuaire, 255; Westlake, I, 50–57; Dana's Wheaton, note 15; Phillimore, II, ch. IV, p. 20; G. G. Wilson, Insurgency and international maritime law, 1 A. J. I. L. (1907), 46–60; Wharton, I, § 69; Moore's Dig. I, 164 et seq.; The Three Friends, 166 U. S. 1, 63.

is more strongly emphasized by Latin-American publicists than the general principle that aliens coming to and settling in a country must normally share its fortunes, and have no claim to better treatment than nationals. In the case of injuries occurring during civil war, without fault of the authorities, the United States has been more observant of this principle than the countries of Europe.2 In 1888, Mr. Bayard said:

1

"It is the duty of foreigners to withdraw from such risks and if they do not, or if they voluntarily expose themselves to such risks, they must take the consequences."

Such was the position assumed by the United States in the Civil War. It has been upheld by international commissions and would under ordinary circumstances probably represent the position of the United States. To visit a locality in a state of insurrection is an assumption of and voluntary exposure to the risks involved.5

Aliens who participate in an insurrection should and do generally forfeit the protection of their own government. Aliens giving aid and comfort to the Confederates were excluded from the right to compensation before the domestic and international commissions sitting after the Civil War. A similar rule was applied in Colombia and other Latin-American republics in their domestic commissions and by the Spanish Treaty Claims Commission. Such participation is a palpable 1 E. g., Seijas, IV, 5-17; 507 et seq., with citation of numerous authorities in support. 2 Seijas, III, 311.

3 Mr. Bayard, Sec'y of State, to Mr. Sutphen, Jan. 6, 1888, Moore's Dig. VI, 963. Strong, Arbitrator in Gelbtrunk (U. S.) v. Salvador, For. Rel., 1902, 873, 878; Upton (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 172, dictum by Bainbridge, Commissioner; Morris's Report, 389.

" Negrete's claim v. Spain, Mr. Bayard, Sec'y of State, to Mr. Sutphen, Jan. 6, 1888, Moore's Dig. VI, 964; Patterson (U. S.) v. Mexico, Mar. 3, 1849, Moore's Arb. 1779; Decision of the British-Haitian commission of 1872, Baty, 161. See Lord Granville's reply to British subjects resident in France who protested against requisitions during the Franco-Prussian War. Atlay's Wheaton, § 151, J; Phillimore, II, 6; Leval, Protection diplomatique, §§ 105, 106.

• Caldwell (No. 283) and Jova (No. 122), where claimants admitted voluntary enlistment in the Cuban forces. But payments to insurgents for permission to remove claimant's cattle (Iznaga, No. 111) or lumber (Bauriedel, No. 239), being considered necessary, did not affect claimant's standing. S. B. Crandall in 4 A. J. I. L. (1910), 822. The United States interposed in the Cannon and Groce affair in Nicaragua, supra, on the ground that its citizens were denied the rights of civilized warfare.

forfeiture of neutrality. Several treaties between European and LatinAmerican countries provide expressly that aliens taking part in civil wars or insurrections or undertaking political office forfeit their exemptions and privileges as foreigners and are to be treated as natives.1

The effect upon the liability of the government of an amnesty to the rebels is somewhat uncertain. When the government has treated the rebels as criminal offenders, and they did not attain the status of revolutionists, an amnesty operates as a pardon and constitutes a failure to punish criminals, a recognized ground of state responsibility. So in the Montijo case, the umpire, Bunch, held the government liable, particularly because the grant of the amnesty deprived the claimant of the power of trying the responsible rebels for the injuries inflicted.2 Secretary Fish applied the same rule to Mexico, there having been no recognition of belligerency, and, as has already been observed, the failure to punish was one of the principal grounds of liability in the de Brissot and Venezuelan Steam Transportation Company cases (supra, p. 218). The failure to prosecute the rebels, but on the contrary their appointment to office under the government, was considered as a tacit approval of their acts and an assumption of liability on the part of the government. In the Wenzel case before the German-Venezuelan Arbitration of 1903, an amnesty unconstitutionally granted was held without effect.5

4

3

1 See, for example, treaty between Spain and Peru, July 16, 1897, Article 5, 89 St. Pap. 598. This rule has been adopted in the constitutions and municipal law of most of the states of Latin-America. Infra, § 391.

2

Although the umpire stated that there was a "stronger reason" for holding Colombia liable. (U. S. v. Colombia, Moore's Dig. VI, 974.) As a matter of fact, the offenders rose to the dignity of insurgents. In the de Brissot case, Little drew a distinction between acts of war and lawless acts of armed bands, even acting with a political object. The failure to punish in the latter case imposed liability on the government. (de Brissot, Moore's Arb. 2967).

3 Moore's Dig. VI, 974.

Bovallins v. Hedlund (Sweden) v. Venezuela, March 10, 1903, Ralston, 952. Agnoli, the Italian commissioner in Guastini (Italy), v. Venezuela, Ralston, 730, 737, tried to show that the extending of a pardon to the Hernandez revolutionists and giving them office threw on the government the responsibility for their acts. Umpire Ralston, however, held Venezuela not liable.

5 Wenzel (Germany) v. Venezuela, Feb. 13, 1913, Ralston, 590. The inference is that if constitutionally granted it would have made the government liable.

In several important cases, however, the granting of an amnesty to rebels has been held not to constitute an assumption of liability for their acts. This has been the case in the United States for the acts of the Confederates, and in Mexico,1 and on principle, appears to be the better rule. As a practical matter, it is not always easy to distinguish between a movement on such a small scale as to amount to a conspiracy or plot against the established government, punishable by municipal law, and a general movement assuming the proportions of an armed contest against the government, of which international law takes notice by recognizing a status of insurgency, manifested in various ways, e. g., a warning by foreign governments to their subjects to abstain from participation. While as a matter of strict right the government may treat the insurgents as criminals, modern practice tends to regard them as belligerents, with rights as such, provided they observe the rules of legitimate warfare.

§ 95. Insurgents in Temporary Control of Limited Areas.

Much difficulty is created by the case of insurgents controlling a part of a territory in insurrection and exercising authority over the area they control. The question has arisen in connection with forced loans and the collection of customs dues by such temporary authorities. Whether the general government is bound by their acts depends upon the extent to which they have become de facto authorities.2 The general tests of a de facto government have already been considered (supra, p. 210).

Secretary Fish, in 1873, asserted the liability of Mexico for forced loans levied by insurgents, basing the contention on the stipulation of the treaty of 1831 with Mexico.3 Treaties of the United States with most of the countries of Latin-America exempt American citizens

1 British-U. S. commission of 1871; French-U. S. commission of 1880; Devine (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2980, Opinion by Thornton, umpire. 2 Wharton, II, 577, § 223.

Mr. Fish, Sec'y of State, to Mr. Foster, Aug. 15, 1873, Moore's Dig. VI, 916; see also Mr. Cadwalader to Mr. Foster, Sept. 22, 1874, who did not even base the contention upon a treaty, Ibid. 917. Secretary Evarts did not construe the treaty to forbid forced loans. Mr. Evarts, Sec'y of State, to Mr. Scott, April 17, 1877, Moore's Dig. VI, 917.

from forced loans, and it is probable that the general government will be held liable for the exaction of such a loan by de facto authorities exercising jurisdiction over a certain area, whether an insurgent faction or not.1

The legitimacy of the collection of customs dues and other taxes by insurgents in control of a certain area depends, similarly, upon the extent to which they are temporarily de facto authorities. If they are in exclusive control the legitimate government has no right to demand second payment of taxes. "Money paid to the de facto authorities". it was said in the case of Guastini-"in the shape of public dues, must be considered as lawfully paid, and receipts given by them regarded as sufficient to discharge the obligations to which they relate. Any other view would compel the taxpayer to determine at his own peril the validity of the acts of those executing public functions in a regular manner.' The United States has always insisted that a payment to de facto authorities releases the taxpayer from a second payment, especially where made under protest.3 Where the so-called insurgents have not become actual de facto authorities, but have, nevertheless, in the character of organized marauders rather than political factions, collected dues, the rule as to second collections has not been uniform. To abstain from demanding a subsequent payment to constituted authorities becomes rather a matter of gracious remission of duties to which the titular government has a right. All the circumstances

1 See case of Fowks v. Peru, For. Rel., 1901, 430-434 (although the revolutionists in this case eventually became successful).

2 Guastini (Italy) v. Venezuela, Ralston, 750; Santa Clara Estates (Gt. Brit.) v. Venezuela, ibid. 397; De Caro (Italy) v. Venezuela, ibid. 819. See the famous case of U. S. v. Rice (the Castine collections), 4 Wheaton, 246, Opinion by Story; MacLeod v. U. S. (1913), 229 U. S. 416, 429. Supra, p. 208.

The compulsion to pay became important in a case in Colombia where the government by decree sought to compel merchants to refuse to pay rebels and, if they did, to pay the government again. (Moore's Dig. VI, 995.) The United States remonstrated against the decree. The decree was then limited to those who had voluntarily paid the insurgents. The United States contended that this vis major or compulsion was to be presumed unless the contrary was shown. See also Suchet (France) v. Venezuela, 9 R. G. D. I. P. (1902), 628; 8 ibid. 57.

Mr. Adee to Mr. Clancy, Mar. 6, 1899 (the Bluefields insurgents), For. Rel., 1899, 548, 558. In France it was held that payments to agents of an insurrection do not bind the legitimate government except so far as it admits this, and that it alone was