"Insurgency" or 3. OF BELLIGERENCY § 74. Since every civil war, as was observed by the Supreme Court in the Prize Cases, begins in insurrection, and since insurrections generally affect to a greater or less extent the "revolt." interests of aliens, and in this way, if in no other, compel the consideration and action of foreign governments, some progress appears to have been made toward the definition of the actual condition of things intermediate between peace and recognized civil war, as a state of "insurgency" or "revolt." It doubtless will have been observed that, although the mere admission of insurgent ships into the ports of the United States in 1815 seems then to have been considered as a recognition of the belligerency of the South American governments, yet Mr. Bancroft Davis, speaking for the Department of State in 1869, with reference to the Cuban insurrection then prevailing, said that Mexico, while she had authorized the Cuban flag to be received in her ports, had "not recognized a state of belligerency." This modification or development of view may be ascribed to the elaboration in the meantime of rules for the precise definition of belligerent rights and disabilities and for the discharge of neutral duties, such as that limiting the stay and the privileges of men-of-war of belligerents in neutral ports. Perhaps the clearest recognition of the state of insurgency or revolt as a distinctive condition may be found in the case of the Cuban insurrection of 1895-1898. June 12, 1895, the President of the United States issued a proclamation reciting that Cuba was "the seat of civil disturbances, accompanied by armed resistance to the authority of the established Government of Spain," and admonishing all persons within the jurisdiction of the United States to abstain from taking part in the disturbances adversely to that Government, by doing any of the acts prohibited by the neutrality laws. In his annual message of December 2, 1895, he stated that Cuba was "greatly disturbed," and described the condition of things as an "insurrection," a "flagrant condition of hostilities," and a "sanguinary and fiercely conducted war." July 27, 1896, he issued another proclamation, referring again to the civil disturbances in the island and the provisions of the neutrality laws. In his annual message of December 7, 1896, he stated that "the insurrection in Cuba still continues with all its perplexities," and reviewed the situation at length. With reference to these facts the Supreme Court said: "The distinction between recognition of belligerency and recognition of a condition of political revolt, between recognition of the a See Albany Law Journal, Feb. 13, 1886, 125. € 29 Stat. 871. d 29 Stat. 881. * * 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 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 acknowledgment of the insurgents as belligerents by the political department has not taken place; and it can not be doubted that, this being so, the act in question [the neutrality statute] is applicable. "I have to acknowledge the receipt of your Nos. 90, of January 26; 91, of February 1; 92, of February 3, and 93, of February 10 last, reporting the serious condition of affairs at La Paz and in the surrounding country. "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. "If the situation at La Paz becomes unendurable or more perilous, you should collect all Americans within reach and quit that city, taking them with you demanding adequate escort to the nearest place of safety." Mr. Hay, Sec. of State, to Mr. Bridgman, min. to Bolivia, March 14, 1899, For. Rel., 1899, 105. VI. RECOGNITION, BY WHOM DETERMINABLE. § 75. In the preceding review of the recognition, respectively, of new states, new governments, and belligerency, there has Summary of prec- been made in each case a precise statement of facts, showing how and by whom the recognition was accorded. In every case, as it appears, of a new government and of edents. The Three Friends (1897), 166 U. S. 63–64, 65–66. In obtaining the release of Spanish prisoners from the insurgents in the Philippines, pursuant to Article VI. of the treaty of peace between the United States and Spain of December 10, 1898, a difficulty was raised by the insurgents insisting that Spanish vessels sent to receive the surrender of the prisoners should fly the Spanish flag as a sign of recognition. To meet the difficulty, the United States suggested that the vessels should fly the Geneva Red Cross flag. (For. Rel. 1899, 689–691.) Spanish-American states. belligerency, the question of recognition was determined solely by the Executive. In the case of the Spanish-American republics, of Texas, of Hayti, and of Liberia, the President, before recognizing the new state, invoked the judgment and cooperation of Congress; and in each of these cases provision was made for the appointment of a minister, which, when made in due form, constitutes, as has been seen, according to the rules of international law, a formal recognition. In numerous other cases, the recognition was given by the Executive solely on his own responsibility. The question of the power to recognize has, however, been specifically discussed on various occasions. January 1, 1819, a discussion took place in the Cabinet of Monroe on a draft by Mr. Adams, as Secretary of State, of an instruction to Mr. Rush announcing the President's intention at no remote period to recognize the government of Buenos Ayres. A question arose as to the form of recognition. Mr. Crawford said that if an acknowledgment was to take place he should prefer to make it, not by granting an exequatur to a consul, but by sending a minister there, because the Senate must then act upon the nomination, which would give their sanction to the measure. Mr. Wirt added that the House of Representatives must also concur by assenting to an act of appropriation. The President, laughing, said that as those bodies had the power of impeachment it would be convenient to have them thus pledged beforehand. Mr. Adams observed that his "impressions were altogether different. I thought it not consistent with our national dignity," said Mr. Adams, "to be the first in sending a minister to a new power. It had not been done by any European power to ourselves. As to impeachment, I was willing to take my share of risk of it for this measure whenever the Executive should deem it proper. And, instead of admitting the Senate or House of Representatives to any share in the act of recognition, I would expressly avoid that form of doing it which would require the concurrence of those bodies. It was, I had no doubt, by our Constitution an act of the Executive authority. General Washington had exercised it in recognizing the French Republic by the reception of Mr. Genest. Mr. Madison had exercised it by declining several years to receive, and by finally receiving, Mr. Onis; and in this instance I thought the Executive ought carefully to preserve entire the authority given him by the Constitution, and not weaken it by setting the precedent of making either House of Congress a party to an act which it was his exclusive right and duty to perform. "Mr. Crawford said he did not think there was anything in the objection to sending a minister on the score of national dignity, and that there was a difference between the recognition of a change of government in a nation already acknowledged as sovereign, and the recognition of a new nation itself. He did not, however, deny, but admitted, that the recognition was strictly within the powers of the Executive alone, and I did not press the discussion further." a " In his message of March 8, 1822, presenting the question of recognizing the Spanish provinces in this hemisphere" to Congress, President Monroe stated that he did so in order that there might be "such cooperation between the two departments of the Government as their respective rights and duties may require." He then proceeded to express the opinion that "the provinces which have declared their independence and are in the possession of it ought to be recognized;" and he concluded by saying: "Should Congress concur in the view herein presented, they will doubtless see the propriety of making the necessary appropriations for carrying it into effect." An appropriation of $100,000 was made "for such missions to the independent nations of the American continent, as the President of the United States may deem proper." In his special message of December 21, 1836, President Jackson observed that a resolution, which had been introduced Texas. in the House of Representatives, "distinctly intimated that the expediency of recognizing the independence of Texas should be left to the decision of Congress. In this view, on the ground of expediency, I am," said President Jackson, “disposed to concur, and do not, therefore, consider it necessary to express any opinion as to the strict constitutional right of the Executive, either apart from or in conjunction with the Senate, over the subject." Congress, however, merely incorporated in the civil and diplomatic appropriations act of March 3, 1837, a provision for the salary and outfit of a diplomatic agent to be sent to the Republic of Texas, whenever the President of the United States may receive satisfactory evidence that Texas is an independent power, and shall deem it expedient to appoint such minister."d "What authority is to recognize Buchanan. * a new government claiming to exist over an island, which constituted an Statement of Mr. integral part of the dominions of a sovereign, with whom our relations are of a friendly character? This act of high sovereign power, certainly can not without instructions, be performed by a consul, whose functions are purely commercial; and he ought never under any conceivable circumstances, to assume such a high responsibility. In the United States such a recognition is usually effected, either by a nomination to, and confirmation by the Senate of a Memoirs of John Quincy Adams, IV. 205–206. Richardson, II. 116–118. "An act making an appropriation to defray the expenses of missions to the independent nations on the American continent." (3 Stat. 678.) d5 Stat. 170. a Diplomatic or Consular agent to the new Government, or by an act of Congress. The latter course was adopted, in the recognition of the independence of the Spanish-American Republics.' Mr. Buchanan, Sec. of State, to Mr. Marston, consul at Palermo, Oct. 31, 1848, 10 MS. Dispatches to Consuls, 489. The circumstances of this case are given, supra, 112-113. Mr. Buchanan, after the passage above quoted, expressly refers to the act of May 4, 1822, the terms of which have just been given. (Supra, 85, 243.) Mr. Mann's instructions. "Should the new Government prove to be, in your opinion, firm and stable, the President will cheerfully recommend to Congress, at their next session, the recognition of Hungary, and you might intimate, if you should see fit, that the President would in that event be gratified to receive a diplomatic agent from Hungary in the United States by or before the next meeting of Congress, and that he entertains no doubt whatever that in case her new Government should prove to be firm and stable, her independence would be speedily recognized by that enlightened body.” Mr. Clayton, Sec. of State, to Mr. Mann, special and confidential agent to Hun- Wharton, Int. Law Dig., I. 553, referring to this passage, says: "As to this it It was maintained by Mr. Seward that the recognition of revolutionary or reactionary governments belongs exclusively to the Executive, and can not be determined internationally by Congressional action. Position of Mr. Mr. Seward, Sec. of State, to Mr. Dayton, April 7, 1864, MS. Inst. France, That the power of recognition belongs exclusively to the Executive is main- Decisions of the "It is for governments to decide whether they will consider St. Domingo as an independent nation, and until such decision shall be made, or France shall relinquish her claim, courts of justice must consider the ancient state. of things as remaining unaltered, and the sovereign power of France over that colony as still subsisting." |