by the events of the American Civil War. The Supreme Court decided in the case of the Amy Warwick that the Confederates were at the same time belligerents and traitors, and subject to the liabilities of both. In practice, however, they were treated as belligerents throughout the struggle. But if third parties are affected by the war, International Law steps in and gives them rules by which to govern their conduct towards the combatants. It lays down that they may under certain circumstances grant to the side in arms against the parent state all the rights of lawful belligerents. The notice of their intention to do this is called Recognition of Belligerency. It must be publicly given either in words, or by the performance of acts peculiar to the relation between a neutral and a belligerent community. It does not confer upon the community recognized all the rights of an independent state; but it grants to its government and subjects the rights and imposes upon them the obligations of an independent state in all matters relating to the war. It follows from this that the powers which give such recognition are bound to submit to lawful captures of their merchantmen made by the cruisers of the community recognized or by those of the mother country. They must also respect effective blockades carried on by either side, and treat the officers and soldiers of the rebels as lawful combatants, no less than the officers and soldiers of the established government.

§ 163.

Since Recognition of Belligerency has such important legal effects, it is necessary to discuss the circumstances under which it may be given by third powers The circumstances without offence to the parent state. Two con

ditions are necessary. The struggle must have

under which Rec

ognition of Bellig

erency may be

lawfully given.

attained the dimensions of a war, as wars are understood by civilized states, and the interests of the power which recog

1 Black, Reports of the U. S. Supreme Court, II., 635.

nizes must be affected by it. The first condition is satisfied when the revolted community is seated upon a definite territory, over which an organized government exercises control except in so far as parts of it may be in the military occupation, of the enemy, in which forces are levied and organized, and from which they are sent into the field to combat according to the rules of civilized warfare. The second condition is satisfied when there are so many points of contact between the subjects of the recognizing state and the warlike operations, that it is necessary for it to determine how it will treat the parties to the struggle. When an insurrection is confined to a district in the interior of a country, other states would be acting in an unfriendly manner if they recognized the belligerency of the insurgents, because by the nature of the case the incidents of the conflict could not directly affect their subjects. But if a frontier province rebelled, it would be difficult for the neighboring power or powers not to determine whether or no the rebellion amounted to a war; and should the struggle be maritime, states interested in sea-borne commerce could hardly refrain from recognition, if the area of hostilities was wide and the interests at stake great and various. The status of cruisers, the legality of blockades, and the validity of captures must be determined. What is lawful treatment of neutral merchantmen, if there is a war, is unauthorized and illegal violence, if there is not; and inasmuch as Recognition of Belligerency relieves the parent state from responsibility for the acts of the insurgent cruisers, and allows it to use the ordinary measures of naval warfare towards the vessels of the recognizing power, it is almost as much benefited by the act as are the people in revolt against it. All these points were thoroughly discussed in the controversy which arose between Great Britain and the United States with regard to the recognition by the former of the belligerency of the Southern Confederacy in the spring of 1861; and it is generally admitted now that the conduct of the British Government was perfectly lawful

and the recognition neither uncalled for nor premature, seeing that great commercial interests were involved and President Lincoln had proclaimed a blockade of the Southern ports three weeks before the Queen's proclamation was issued.1

§ 164.

The question

whether Recogni

is

tion of Belliger

or

ency can be given

to a fleet acting

without a land

basis.

Recent events in some of the South American Republics have come very near to raising the question whether a revolted fleet can receive Recognition of Belligerency, if the party in whose interests it acting has gained possession of no place province to be the land basis of its operations. When the Chilian congressional party revolted against President Balmaceda in 1891, it had at first only the fleet on its side; but in a very short time districts and land forces joined the movement, which was then recognized by neutral powers and succeeded in gaining control of the government after a severe struggle. In the case of the Brazilian insurrection in 1893, the fleet under Admirals de Mello and da Gama was the chief agent of the revolt; but it seems to be an undoubted fact that certain provinces or parts of provinces rose against the established government, and it is claimed that the insurrectionary movement originated on land. Recognition of Belligerency was not accorded to the insurgents. Whether it could ever be lawfully given in the absence of any land basis for the operations of a revolt is a question which third states have not been obliged to solve, though circumstances have so nearly presented it to them that a good deal of attention has been directed towards it. On the one side it may be argued that all the activities of a state or quasi-state are so intimately connected with the notion of territorial sovereignty, that it would be impossible to give even the limited rights of a belligerent to a community which had political control over no portion of the earth's

1 Wharton, International Law of the United States, § 69.

Χ

surface. On the other side it may be said that the warlike operations of an insurgent fleet would so affect the interests of neutral commerce, that maritime powers would be obliged to regard them as lawful acts of warfare, unless they were prepared to take the extreme step of treating the revolted vessels as pirates, or the less extreme but still high-handed course of restraining the insurgents from performing certain acts affecting neutral interests. This was done in 1893 and 1894, when the revolted squadron in the harbor of Rio was prevented by the war vessels of the United States, Great Britain and other powers from enforcing a blockade of the port against their respective merchantmen. If the case should actually arise, events, and not legal reasoning, will probably settle it, as the Brazilian difficulty has been settled, by the collapse of the insurrectionary movement, and the surrender of most of the insurgent ships on March 13, 1894. A fleet with

out a port or land basis of any kind cannot continue hostilities for long. Unless some portion of the state's territory joins it, the operations it carries on will soon come to an end, and third powers can afford to await the inevitable conclusion.1

The immediate

outbreak of war.

§ 165.

The outbreak of the war brings about an immediate and important change in the legal relations of the subjects of the belligerent states. The public armed forces on legal effects of the each side are at once endowed with the right to carry on active hostilities according to the ordinary rules of warfare; and private individuals come under an obligation to refrain from holding pacific intercourse with the enemy. It is treasonable for them to give him intelligence about the plans and operations of their own side. They may not buy public funds and securities created by his government during the war. As soon as war begins existing commercial partnerships between them and enemy subjects are ipso facto dissolved, and no new ones may be

1 For a full discussion of this question see Lawrence's "Recognition of Belligerency considered in Reference to Naval Warfare," in the Journal of the Royal United Service Institution for January, 1897.

No debts contracted with

entered into till peace is restored. enemy subjects before the war can be recovered during its continuance, nor can contracts entered into but not performed be enforced; but as soon as it is over the right to obtain what is due by legal process revives. No insurance of enemy property can be effected or accepted, and no bills of exchange drawn on an enemy subject. In short no business transactions can be carried on, pending hostilities. To the extent, then, of a suspension of all ordinary peaceful intercourse the subjects of enemy states are enemies. This doctrine is denied by some continental publicists, but with little reason. Non-combatants are exempt from any of the severities of warfare, yet they are not by any means free to act as if no war existed.

The rules we have laid down are those of the Common Law of nations, which, however, allows exceptions to some of them in the case of what are called contracts of necessity. Ransom bills may be given by captains of captured merchantmen to their captors, if the law of their own country allows it; and bills of exchange may be drawn by a prisoner in the enemy's country to obtain means of subsistence. Another and wider class of exceptions is due to the policy of the belligerents, who sometimes relax the strict rules of nonintercourse in favor of special individuals, by granting them licenses to trade with the enemy at a specified place in specified articles and to a specified extent. A belligerent may give licenses to neutrals as well as to his own subjects. Sometimes trade with the enemy is allowed on a larger scale by a wide and general permission, addressed not to particular individuals but to all whom it may concern. Thus at the beginning of the Crimean War in 1854 trade with nonblockaded Russian ports was allowed to British subjects, provided that it was carried on in neutral vessels and did not include articles that were contraband of war. The French Government gave a similar permission to its subjects, 1 See § 208.