course through their existing agencies within its territory in spite of disturbances therein incidental to a contest for governmental control. The United States has frequently availed itself of this right which it has been able to exercise without expressly or impliedly recognizing as a government the parties with which communications have been held. What has prevented such a consequence has been the care taken to refrain from acts stamping communications with an official character. Thus there has been no formal presentation of credentials.

Conversely, the attempt to overthrow a de jure_government, regardless of the success of the endeavor, does not necessarily prevent the existing agencies of the State established in foreign countries from continuing to exercise their diplomatic or other functions.2 The United States generally takes the position that continued and even official intercourse through such channels does not imply recognition of the particular government which

"In the case of new governments, however, a situation usually exists which does not arise in the case of new States. In the latter case special agents are, where there is occasion for them, employed, since the dispatch of a minister to a new State is one of the acts from which its recognition is necessarily implied; but, in the case of a new government, the question of recognition as a rule practically concerns only the powers that have already recognized the State and established regular diplomatic relations with it. There has thus arisen a certain right of diplomatic representation; and the sending of a new minister or the retention of an old one, while it implies continued recognition of the State, does not constitute a recognition of the new government, so long as there is no formal presentation of credentials and communications bear only an unofficial character." J. B. Moore, I, 235.

See, also, Mr. Seward, Secy. of State, to Mr. Culver, March 9, 1863, MS. Inst. Venezuela, I, 266, Moore, Dig., I, 235; Mr. Gresham, Secy. of State, to Mr. Baker, Minister to Nicaragua, Aug. 15, 1893, For. Rel. 1893, 212, Moore, Dig., I, 239; Mr. Hay, Secy. of State, to the Secy. of the Navy, Oct. 2, 1899, 240 MS. Dom. Let. 353, Moore, Dig., I, 240.

2 Mr. Hay, Secy. of State, to Mr. Loomis, Minister to Venezuela, Nov. 18, 1899, For. Rel. 1899, 809, Moore, Dig., I, 236.

Mr. Seward, Secretary of State, was persistent in his refusal to hold even unofficial intercourse with emissaries of governments not recognized by the United States. See Mr. Seward, Secy. of State, to Mr. Partridge, Minister to Salvador, Jan. 2, 1864, MS. Inst. American States, XVI, 399, Moore, Dig., I, 237; Same to Same, No. 34, Jan. 29, 1864, MS. Inst. American States, XVI, 415, Moore, Dig., I, 237. Nevertheless, Mr. Seward permitted Mr. Arroyo, described as "consul, acting as commercial agent, New York", appointed by the government of Maximilian in Mexico, which was not recognized by the United States, to attest invoices and manifests of vessels bound to Mexican ports from New York. "Such a commercial agent," Mr. Seward said, "can perform no consular act relating to the affairs of his countrymen in the United States." Communication to Mr. Romero, Mexican Minister, Aug. 9, 1865, Dip. Cor., 1865, III, 486-488, Moore, Dig., I, 238. See, also, Mr. Adams, Secy. of State, to the President, Jan. 28, 1819, Am. St. Pap. For. Rel. IV, 413. Moore, Dig., I, 132.

The attitude of the Navy Department on the question of salutes, pending an insurrection, is instructively set forth in Moore, Dig., I, 240, note, with respect to the action of Commodore O. F. Stanton, U. S. N., during a revolt in Brazil, October, 1893.

may utilize those agencies as its own. Obviously no new credentials emanating from an unrecognized government would be received from individuals already in the diplomatic or consular service and who were disposed to accept the authority of the unrecognized régime:1

i

Recognition of Belligerency

§ 47. In General.

(1)

In case an insurrection has attained a magnitude such that the mode and extent of operations by sea or land, and by whomsoever committed, are deemed sufficiently to concern the interests of a foreign State, it may in fact accord to the insurgents the rights of belligerents.2 Recognition of belligerency emanates from the political department of the State which yields it,3 and is commonly announced in a formal proclamation.4

By such action, the foreign State undertakes to treat both parties to the conflict as belligerents, and also to assume itself in relation to them the position of a neutral with the burdens and rights incidental to such a status.5

1 A diplomatic officer may prove to be unwilling to exercise his functions as such in behalf of a new government to whose methods and purposes he is opposed. See, for example, documents in Moore, Dig., I, 134–135, concerning the attitude of Mr. Barrozo, Portuguese Chargé d'Affaires at Washington, 1828, with respect to the government of Dom Miguel.

Upon the overthrow of the Pardo Government of Peru in July, 1919, through the occurrence of events which he deemed to be a violation of the constitution of that country, Dr. Tudela, the Peruvian Ambassador at Washington, handed over the archives of his embassy to the First Secretary thereof, and duly advised the Department of State. See Statement from Peruvian Embassy, New York Times, July 18, 1919.

Fuller, C. J., in the opinion of the Court in the case of The Three Friends, 166 U. S. 1, 63; also Dana's Wheaton, Dana's Note No. 15, Moore, Dig., I, 165; Lawrence B. Evans, Cases on Int. Law, 38, note.

The courts regard themselves as bound by the attitude of the political department in according recognition. United States v. Palmer, 3 Wheat. 610, 643; The Divina Pastora, 4 Wheat. 52, 63; The Nueva Anna, 6 Wheat. 193.

Mr. Blaine, Secy. of State, to the Atty.-Gen., March 18, 1889, 172 MS. Dom. Let. 228, Moore, Dig., I, 201; Benedict, J., in The Conserva, 38 Fed. 431, 437, Moore, Dig., I, 201.

"The act of recognition usually takes the form of a solemn proclamation of neutrality which recites the de facto condition of belligerency as its motive. It announces a domestic law of neutrality in the declaring State. It assumes the international obligations of a neutral in the presence of a public state of war. It warns all citizens and others within the jurisdiction of the proclaimant that they violate those rigorous obligations at their own peril and cannot expect to be shielded from the consequences. The right of visit and search on the seas and seizure of vessels and cargoes and contraband of war and good

Recognition thus presupposes the existence of what is equivalent to war between the parties in opposition, and serves to clothe each with such rights with respect to the outside State as might be fairly claimed were the conflict being waged between two independent powers. These consequences are such as to confer commonly a distinct benefit upon the insurgents obtaining recognition, increasing proportionally the burden of the government opposing them. For that reason it is constantly maintained that a foreign State is not free thus to aid an insurgent cause, save under special conditions which relieve the former from a normal duty of restraint. Diplomatic discussions have, however, revealed a divergence of opinion as to what conditions so operate. American statesmen have been reluctant to admit that such action is legitimate save when necessity confronts the State making the concession.2 The United States has itself been cautious to avoid precipitation in according recognition,3 and has withheld such a concession whenever its own domestic policies were deemed to oppose such action.4

It may be doubted whether the precise conditions when recognition may be justly accorded by a foreign State are capable of nice statement. The bearing, however, of certain considerations, whether favorable or unfavorable to such action, ought not to remain obscure.

prize under admiralty law must under international law, be admitted as a legitimate consequence of a proclamation of belligerency." President McKinley, Annual Message, Dec. 6, 1897, For. Rel. 1897, XVII.

The benefit consists in placing the insurgents on an equal footing as belligerents with the parent State, and in thus conferring upon them a status of political and moral value.

2 "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." Dana's Wheaton, Dana's Note No. 15. See, also, President Grant, special message, June 13, 1870, Moore, Dig., I, 194; President Grant, Annual Message, Dec. 7, 1875, For. Rel. 1875, I, ix, Moore, Dig., I, 196.

Mr. Cass, Secy. of State, to Mr. Osma, Peruvian Minister, May 22, 1858, Senate Ex. Doc. 69, 35 Cong., 1 Sess., 17, Moore, Dig., I, 182; Mr. Adams, American Minister at London, to Lord Russell, Sept. 16, 1865, Dip. Cor. 1865, I, 554, 557, in relation to the action of the United States with respect to the issue between Spain and its American colonies, Moore, Dig., I, 172; Mr. Gresham, Secy. of State, to Mr. Thompson, Minister to Brazil, Jan. 11, 1893, For. Rel. 1893, 99, Moore, Dig., I, 204.

See, for example, President Grant, Annual Message, Dec. 7, 1875, For. Rel. 1875, X; President Cleveland, Annual Message, Dec. 7, 1896, For. Rel. 1896, XXXII; President McKinley, Annual Message, Dec. 6, 1897, For. Rel. 1897, XVIII. The foregoing messages, in relation to the point here considered, are contained in Moore, Dig., I, 196-200.

(2)

§ 48. Where Parent State Has Recognized Belligerency. When in its work of repression the parent State treats the insurrection as though it were productive of a state of war, as, for example, by proclaiming a blockade of ports held by the insurgents, it appears thereby to forfeit the right to claim that any subsequent act of external recognition is premature or inequitable.1 Thus Great Britain found a sufficient answer to the complaints of the United States concerning the Queen's proclamation of May 13, 1861, recognizing the Confederate States as insurgents, in the President's proclamation of a blockade during the previous month.2

(3)

§ 49. Where Parent State Has Not Recognized Belligerency.

Doubtless the foreign State need not show that at the time of according recognition there was a probability that eventual suc

"The parent State may recognize the belligerency of a revolting community by acts which imply the existence of war or by formal declaration. Either course may justify recognition by foreign States." G. G. Wilson, Int. Law, 1910, 43.

2 Lord Russell, British Foreign Secy., to Mr. Adams, American Minister at London, May 4, 1865, Dip. Cor. 1865, 1, 356; Same to Same, Aug. 30, 1865, id., 536.

See, also, The Prize Cases, 2 Black, 635, 666-667, 669-670, Moore, Dig., I, 190; Williams v. Bruffy, 96 U. S., 176, 189-190, Moore, Dig., I, 191.

"It has been held by this court in repeated instances that, though the late war was not between independent nations, yet, as it was between the people of different sections of the country, and the insurgents were so thoroughly organized and formidable as to necessitate their recognition as belligerents, the usual incidents of a war between independent nations ensued." United States v. Pacific Railroad, 120 U. S. 227, 233, Moore, Dig., I, 191.

"It is to be observed that the rights and obligations of a belligerent were conceded to it [the Confederacy] in its military character, very soon after the war began, from motives of humanity and expediency by the United States." Chief Justice Chase, in Thorington v. Smith, 8 Wall. 10-11, quoted by Harlan, J., in Baldy v. Hunter, 171 U. S., 388, 393-394; also Moore, Dig., I, 192.

It may be noted that on May 15, 1869, Mr. Fish, Secy. of State, in a communication to Mr. Motley, American Minister at London, declared that the President recognized the right of every power when a civil conflict had arisen within another State, and had attained a sufficient complexity, magnitude and completeness, to define its own relations and those of its citizens and subjects towards the parties to the conflict, so far as their rights and interests were necessarily affected by it. He added that "the necessity and the propriety of the original concession of belligerency by Great Britain at the time it was made have been contested and are not admitted. They certainly are questionable, but the President regards that concession as a part of the case only so far as it shows the beginning and the animus of that course of conduct which resulted so disastrously to the United States. It is important in that it foreshadows subsequent events." Moore, Dig., I, 192.

See, also, Case of the United States, Part II, Geneva Arbitration, Papers

cess would attend the insurgent movement.1 It would appear, however, reasonable to demand on principle that the contest amount, at that time, to what may be fairly regarded as actual war, and as such, something more than "a mere contest of physical force, on however large a scale." 2 As has been well said:

It must be an armed struggle, carried on between two political bodies, each of which exercises de facto authority over persons within a determinate territory, and commands an army which is prepared to observe the ordinary laws of war. It requires, then, on the part of the insurgents an organization purporting to have the characteristics of a State, though not yet recognized as such. The armed insurgents must act under the direction of this organized civil authority. An organized army is not enough. And all this, of course, must take place within the territorial limits recognized by foreign States as part of the parent country.3

To accord recognition to insurgents who have not achieved such a degree of success, and who are not so organized, manifests the giving of aid to a cause or movement which, at the time, is incapable of assuming those responsibilities of a belligerent which such action shifts automatically from the parent State to the shoulders of its opponents. Under such circumstances that State may not unreasonably complain that recognition is designed primarily to aid the insurrection rather than to satisfy the legitimate needs of a foreign power, and so constitutes action resembling in theory intervention in the domestic affairs of the complaining State.

It may be doubted whether recognition of belligerency can generally be safeguarded so as not to influence in some degree the duration or result of the conflict. It should not be admitted, therefore, Relating to the Treaty of Washington, I, 19-46. Cf. Geo. Bemis, Hasty Recognition of Rebel Belligerency, and Our Right to Complain of It, Boston, 1865.

1 Mr. Forsyth, Secy. of State, to Mr. Gorostiza, Mexican Minister, Sept. 20, 1836, Senate Ex. Doc. 1, 24 Cong., 2 Sess., 81, Moore, Dig., I, 176. Compare message of President Monroe, March 8, 1822, Am. State Pap. For. Rel., IV, 818, Moore, Dig. I, 174.

2 Jos. H. Beale, Jr., "The Recognition of Cuban Belligerency," Harv. Law Rev., IX, 406, 407.

3 Id., 407, where Walker, Science of Int. Law, 115, is referred to as the basis of the first sentence quoted.

"We must have some political organization responsible for what takes place in all the territory of the civilized world. By recognizing the belligerency of insurgents, we free the parent country from all responsibility for what takes place within the insurgent lines." Jos. H. Beale, Jr., in Harv. Law Rev., IX, 407, note 3, citing Dana's Wheaton, Dana's Note No. 15.