in general liable to the neutral owners of property destroyed by the government troops while in the hands of rebels, for it has 'then become enemy property subject to destruction.1 Where the government, however, receives a benefit from neutral property taken from the rebels, originally seized by the latter, equity requires, it has been held, that it should pay for the property2 and for injuries sustained by the property through the unusual use to which it has been subjected while in government hands.3 The Spanish Treaty Claims Commission made awards for the seizure and use by Spanish forces of private property in Cuba, regardless of the purpose of the appropriation, whether to satisfy the needs of the army or to prevent its falling into the hands of the enemy. The government is bound to make compensation for the use of neutral vessels in its ports, and for their detention for purposes of the war. This exercise of the right of angary and embargo is often regulated by treaty.5 A state is also liable for injuries sustained by aliens in closing, by proclamation, a port in the control of the insurgents,6 a violation indeed of the laws of blockade. In this connection, it may be noted that the distinction between a state of war and a state of insurrection has important consequences with respect to foreign countries," but in the matter of closing ports in the hands of insurgents, only an

7

Descamps & Renault, Rec. int. des traités du xx siècle, 1901, Chiessa, p. 707; Sassarego, 708; Sanguinetti, 713; Vercelli, 717; Quierolo, 718; Valle, 721; and others. 1 Barrett (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 2900. See also case of Walker, ibid. 2901.

2 Mazzei (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 693.

3 Bonti (U. S.) v. Mexico, July 4, 1868, Opinions, 718 (not in Moore). Agnoli, Italian commissioner in the Guastini case, supra (Ralston, 737) contended for the construction that such property was not enemy property, relieving government from liability for its return.

4 The general rule relieves the government of liability for neutral property destroyed to prevent its falling into the enemy's hands. Notwithstanding that this was the purpose, the Commission made awards if the property was used (Final Report, 12, 13). See also Rule 4 of Nicaraguan Mixed Claim Com., 1911.

5 Bonfils, § 328; Chepica (Gt. Brit.) v. Chile, For. Rel., 1896, 38.

Rule 1b of the Institute, 18 Annuaire, 254, Wharton, III, § 361, Moore's Dig. VII, §§ 1270–1271; De Caro (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 810; Comp. Gen. des Asphaltes (Gt. Brit.) v. Venezuela, Ralston, 337, and authorities there cited. As to illegal warning off from ports in hands of insurgents, see Boyne and Monmouth (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3923.

7 Moore's Dig. I, 166, 167.

effectively established blockade need be recognized by foreign powers. This does not affect the right of states, in time of peace, and under appropriate circumstances, to designate the ports within their control which shall be open or closed to commerce.

§ 94. Limitations on General Rules. Effect of Recognition, Continued Residence, Participation and Amnesty.

It will now be proper to examine certain limitations on the general rules governing state responsibility for injuries occurring in civil war. These arise out of (1) the recognition of the belligerency of the insurgents by the parent state or by foreign governments, or the existence of actual belligerency; (2) the continuation of domicil by a foreigner in the territory in insurrection; (3) participation in the rebellion on the part of a foreigner; and (4) the effect of amnesty.

Recognition, by the parent government, of the belligerency of insurgents against it or the existence in fact of a state of war releases the state from responsibility for all acts of the insurgents subsequent to the recognition. Recognition by some foreign governments only, operates as a release as against their subjects, and other non-recognizing powers are not necessarily bound. Recognition by the parent government is usually tacit and indirect only. The rule that the government is responsible for such acts of insurgents as were perpetrated through its own negligence is, therefore, suspended by the act of recognition. Formal recognition is not, however, necessary to raise insurgency to the plane of belligerency. Belligerent rights may be acknowledged without recognition and this is usually the case on the part of the parent government. In the Civil War, for example, the non-responsibility of the United States resulted not from the recognition of the belligerency, but from the fact of belligerency itself, whether recognized or not by other governments.2 The importance of establishing the fact of or a recognition of belligerency is therefore great. Up to that point the government may treat the rebels as traitors and criminals

1 Mr. Fish, Secretary of State, to Mr. Foster, Minister to Mexico, Dec. 16, 1873, Moore's Dig. VI, 976. The Spanish Treaty Claims Commission took judicial notice of the fact that the insurrection in Cuba passed from the first beyond the control of Spain, and that war in a material sense existed.

'Prats (Mexico) v. U. S., July 4, 1868, Moore's Arb. 2886.

3

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.2 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.

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:

"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." "

4

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. Seijas, III, 311.

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,3 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

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.

4 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.

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