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ternal 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."
The executive department of the Government of the United States, and those of several other countries, have decided previously to the judicial decisions above referred to in another way in the following cases.
1. In 1873.—The Spanish ships 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 subjects were not affected.
2. In 1877.-The steamer Montezuma, a Spanish vessel, was seized by Cuban insurgents, and under the new name of the Cespedes was sent to attack Spanish merchantmen in the Rio Plata. The Government of Spain requested Brazil to treat her as a pirate if she entered Brazilian ports. Brazil refused to do this on the ground that the steamer did not fulfil the definition of a pirate, and furthermore confined her hostilities exclusively against Spain.
3. In 1891.—The Congressional party of Chile seized the major portion of the Chilean navy, which was allowed freedom of operations by the various foreign naval forces in the waters thereabouts, excepting blockade against foreign vessels. The seizure of contraband in neutral vessels was, however, submitted to or rather acquiesced in.
4. In 1893-294.—The greater part of the Brazilian fleet was in revolution. Admiral Benham, in command of the United States naval force upon that station, took the ground that during the hostilities in Rio Harbor any American vessels that moved about the harbor did so at their own risk, but that during their loading and unloading they were to be protected. No blockade was allowed or acknowledged. The landing of contraband or military supplies to the enemy could be stopped by the insurgents. Practically the insurgents had the right to carry on hostilities afloat as well as ashore, except where neutrals were affected, i. e., blockade, rights of visit and search and a recognition in neutral ports. In their own waters, but not upon the high seas, they seemed to have exercised the right of seizing contraband as a right of hostilities.
The Three Friends case.—The Supreme Court of the United States in the Three Friends case in 1897, during the Cuban insurrection previous to the Spanish-American hostilities, said, “ The distinction 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 (the executive) has not recognized the existence of a de facto belligerent power 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 been incurred. ... We are thus judicially informed of the existence of an actual conflict of arms in resistance of the authority of a government with which the United States are on terms of peace and amity, although acknowledgement of the insurgents as belligerents by the political department has not taken place, and it cannot be doubted that, this being so, the act in question (the neutrality statute) is applicable.”
Secretary of State, John Hay, in 1899, in response to letters from the minister accredited to Bolivia during an in
surrection, gave the following instructions, which are applicable to naval officers in similar circumstances :
“ 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 for life and property."
Effect of recognition of belligerency.-Dana says as to the recognition of belligerency that “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 lawthat is, powers and rights of war must be in actual exercise; otherwise the recognition is falsified, for the recognition is a fact. ... 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 wmmissioned 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 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 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.”
12 Moore's Digest, Vol. 1, p. 243.
13 Moore's Digest, Vol. 1, pp. 166, 167-168. Principles, 4th edn., p. 354.
See also Lawrence's 14 Oppenheim, Vol. 1, p. 112.
Recognition of States.-As to the next step, the recognition of the new state, it must be noted that between the recognition of belligerency given to those in revolt against the parent state and their recognition as a new state, there is, as Oppen
a broad and deep gulf.” The exact time of such recognition of independence as a new state is most important. An untimely recognition of a new state is a “violation of the dignity of the mother state, to which the latter need not patiently submit.” Thus the recognition of the United States by France in 1778 was precipitate and led to war with Great Britain. But when, in 1782, Great Britain herself recognized the independence of the United States other states could accord recognition, too, without giving offence to England.
The United States recognized the Spanish colonies, which had declared their independence in 1814, only in 1822, and England only in 1824 and 1825.
FUNDAMENTAL RIGHTS AND DUTIES OF STATES.—TERRITO
RIAL PROPERTY OF A STATE.—TERRITORIAL JURISDICTION
Fundamental rights and duties of a sovereign State.There are certain rights and duties which are inherent to a sovereign state; to a less degrees these exist in states not fully sovereign. They are:
1. The right of independence.
4. The right of absolute and exclusive jurisdiction over its own territory.
5. The right of self-preservation.
The duties that correspond to these fundamental rights are those of good faith, of affording redress for wrongs; of due regard for the dignity and equality of other states, and of general and international good-will and courtesy.
Independence and legal equality. The first fundamental right, that of independence, is essential to the creation and existence of a sovereign state. It has been sufficiently discussed elsewhere, as well as the modifications made in this essential by states less than sovereign. The same may be said as to the legal equality of sovereign states.
The right to hold property.--A state, like a private corporation, is in law also a legal person, and in its corporate capacity may have absolute ownership of property just as an individual in the state has ownership in his property. Thus, arsenals, navy yards, public buildings, public lands, etc., are