"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 law-that is, powers and rights of war must be in actual exercise; otherwise the recognition is falsified, for the recognition is of a fact. The tests to determine the question are various, and far more decisive where there is maritime war and commercial relations with foreigners. Among the tests are the existence of a de facto political organization of the insurgents sufficient in character, population, and resources to constitute it, if left to itself, a state among the nations, reasonably capable of discharging the duties of a state; the actual employment of military forces on each side, acting in accordance with the rules and customs of war, such as the use of flags of truce, cartels, exchange of prisoners, and the treatment of captured insurgents by the parent state as prisoners of war; and, at sea, employment by the insurgents of commissioned cruisers, and the exercise by the parent government of the rights of blockade of insurgent ports against neutral commerce, and of stopping and searching neutral vessels at sea. If all these elements exist, the condition of things is undoubtedly war; and it may be war before they are all ripened into activity. "As to the relation of the foreign state to the contest, if it is solely on land, and the foreign state is not contiguous, it is difficult to imagine a call for the recognition. If, for instance, the United States should formally recognize belligerent rights in an insurgent community at the center of Europe, with no seaports, it would require a hardly supposable necessity to make it else than a mere demonstration of moral support. But a case may arise where a foreign state must decide whether to hold the parent state responsible for acts done by the insurgents, or to deal with the insurgents as a de facto government. (Mr. Canning to Lord Granville on the Greek war, June 22, 1826.) If the foreign state recognizes belligerency in the insurgents, it releases the parent state from responsibility for whatever may be done by the insurgents, or not done by the parent state where the insurgent power extends. (Mr. Adams to Mr. Seward, June 11, 1861, Dip. Corr., 105.) In a contest wholly upon land a contiguous state may be obliged to make the decision whether or not to regard it as a war; but, in practice, this has not been done by a general and prospective declaration, but by actual treatment of cases as they arise. Where the insurgents and the parent state are maritime, and the foreign nation has extensive commercial relations and trade at the ports of both, and the foreign nation and either or both of the contending parties have considerable naval force, and the domestic contest must extend itself over the sea, then the relations of the foreign state to this contest are far different. "In such a state of things the liability to political complications, and the questions of right and duty to be decided at once, usually away from home, by private citizens or naval officers, seem to require an authoritative and general decision as to the status of the three parties. involved. If the contest is a war, all foreign citizens and officers, whether executive or judicial, are to follow one line of conduct; if it is not a war, they are to follow a totally different line. If it is a war the commissioned cruisers of both sides may stop, search, and capture the foreign merchant vessel, and that vessel must make no resistance and must submit to adjudication by a prize court; if it is not a war, the cruisers of neither party can stop or search the foreign merchant vessel; and that vessel may resist all attempts in that direction, and the ships-of-war of the foreign state may attack and capture any cruiser persisting in the attempt. If it is war, foreign nations must await the adjudication of prize tribunals; if it is not war, no such tribunal can be opened. If it is war, the parent state may institute a blockade jure gentium of the insurgent ports, which foreigners must respect; but if it is not a war, foreign nations having large commercial intercourse with the country will not respect a closing of insurgent ports by paper decrees only. If it is a war, the insurgent cruisers are to be treated by foreign citizens and officials, at sea and in port, as lawful belligerents; if it is not a war, those cruisers are pirates, and may be treated as such. If it is a war, the rules and risks respecting carrying contraband, or dispatches, or military persons, come into play; if it is not war, they do not. Within foreign jurisdiction, if it is a war, acts of the insurgents in the way of preparation and equipments for hostility may be breaches of neutrality laws; while, if it is not war, they do not come into that category, but under the category of piracy or of crimes by municipal law. If it [the political department of a foreign government] issues a formal declaration of belligerent rights prematurely, or in a contest with which it has no complexity, it is a gratuitous and unfriendly act. If the parent government complains of it, the complaint must be made upon one of these grounds. To decide whether the recognition was uncalled for and premature requires something more than a consideration of proximate facts and the overt and formal acts of the contending parties. The foreign state is bound and entitled to consider the preceding history of the parties; the magnitude and completeness of the political and military organizations and preparations on each side; the probable extent of the conflict by sea and land; the probable extent and rapidity of its development; and, above all, the probability that its own merchant vessels, naval officers, and consuls may be precipitated into sudden and difficult complications abroad. The best that can be said is that the foreign state may protect itself by a seasonable decision-either upon a test case that arises or by a general prospective decision-while, on the other hand, if it makes the recognition prematurely, it is liable to the suspicion of an unfriendly purpose to the parent state. 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 commissioned 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 the 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." Note of Mr. Dana, Dana's Wheaton, § 23, p. 34. Sir Alexander Cockburn, in his opinion at Geneva, says: "The principles by which a neutral state should be governed as to the circumstances under which, or the period at which, to acknowledge the belligerent status of insurgents have been nowhere more fully and ably, or more fairly, stated than by Mr. Dana, in his edition of Wheaton, in a note to section 23." See Lawrence, Principles of Int. Law, § 163. 2. THE AMERICAN REVOLUTION. $ 60. Turning to the precedents, we find, as has been intimated, little of definite value in the earlier cases. "In the year 1779," said Mr. Wheaton, with reference to the American Revolution, "the United States constituted a confederation of States, sovereign de facto, and engaged in war with Great Britain, in which the rights of war were acknowledged by the parent country itself, in the solemn exchange of prisoners by regular cartels; in the respect shown to conventions of capitulation concluded by British generals, and in the exercise of other commercia belli usually practised and recognized between civilized nations." But, both before and after 1779, the course of foreign governments toward the United States was varying and uncertain. The Com a a Mr. Wheaton, minister to Prussia, to Mr. Upshur, Sec. of State, No. 233, Aug. 23, 1843, H. Ex. Doc. 264, 28 Cong. 1 sess. 6. Immediately following the passage above quoted, Mr. Wheaton says: "The United States were associated, in the war against Great Britain, with two of the greatest powers of Europe-France and Spain— both of which had acknowledged their independence, whilst the former had concluded with them a treaty of intimate alliance." These statements are not altogether accurate. Spain did not acknowledge the independence of the United States pending hostilities. As late as March 30, 1782, Montmorin, the French ambassador at Madrid, wrote that the Count de Florida Blanca regarded the independence of the United States with "much indifference and perhaps fear;" that he had "never wished to declare himself openly for the United States, and even now he seems to draw himself away from them still more." (Dip. Cor. Am. Rev., Wharton, V. 287– 289.) It may also be misleading to couple France and Spain as powers with which the United States was "associated" in the war against Great Britain. While Spain, at the solicitation of France, gave the United States in an early stage of the American conflict some pecuniary aid, she afterwards declined to give further assistance or to form any connection with the United States; and when, in June, 1779, she proceeded to engage in hostilities against Great Britain, she did so for purposes of her own, and without any concert or connection with the United States. mittee of Secret Correspondence of the Continental Congress, writing to Deane, October 1, 1776, in the second year of the American Revolution, said: "We are told that our vigilant enemies have demanded of the courts of France, Spain, and Portugal to deliver up the American ships in their ports and to forbid their having any future intercourse with them. The court of Portugal has complied so far as to order our ships away on ten days' notice. That France and Spain gave evasive answers." The extension of even more than ordinary belligerent privileges to American ships in French ports was "winked at " by the government, but the fact that the French government was at the time rendering secret aid to the United States, of which it became early in 1778 the formal ally, detracts from the value of its action as a legal precedent. The same thing may be said as to the shifting course of Spain, who joined France in June, 1779, against Great Britain. Portugal, August 30, 1780, ordered the exclusion of the privateers and prizes of all the nations at war from her ports; but, by an edict published July 5, 1776, the same government had ordered the exclusion from its ports of all ships belonging to the people of the United States or coming from the ports of those States, and this edict was not repealed till February 15, 1783. The government of Prussia ordered merely that "the merchant vessels of America" should be received on a footing of friendship and equality in the ports of the kingdom. Denmark, in the autumn of 1779, seized and delivered up, on the demand of Great Britain, certain British ships which were brought by their American captors into the port of Bergen; but the Danish government afterwards intimated that it acted under compulsion. In the autumn of 1779, Paul Jones put into the Texel in distress with two British ships, which he had captured at sea. The British ambassador demanded their seizure. and restitution and the release of their crews. The States General, adhering to their "ancient maxim" not to decide "upon the legality or illegality of prizes brought into their ports," refused this demand, and ordered the captor, who is referred to as "a certain Paul Jones," as soon as practicable to put to sea. In December, 1780, Great Britain, on various grounds, proclaimed reprisals against the Dutch, and a state of war between the two countries soon followed.i a Dip. Cor. Am. Rev., Wharton, II. 157, 161. See, also, letter of Franklin, Deane, and Lee to the Portuguese ambassador at Paris, April 26, 1777, id. 307. Franklin and Deane to the Committee of Foreign Affairs, May 25, 1777, Dip. Cor. Am. Rev., Wharton, II. 322. Dip. Cor. Am. Rev., Wharton, III. 310. Wharton, Dip. Cor. Am. Rev. IV. 83. Wharton, Dip. Cor. Am. Rev. V. 586; VI. 294. Wharton, Dip. Cor. Am. Rev. III. 347-348. 9 Wharton, Dip. Cor. Am. Rev. III. 385, 433, 435, 528, 534, 540, 597, 678, 679, 744; V. 462; VI. 717; Moore, Int. Arbitrations, V. 4572. A Wharton, Dip. Cor. Am. Rev. III. 420-421. Wharton, Dip. Cor. Am. Rev. IV. 219, 510. 3. REVOLUTION IN SPANISH AMERICA. § 61. "Your letter of the 29 May has been submitted to the consideration of the President. It does not appear that such general Instructions to Col- instructions as you mention have issued from this lectors of Customs, department, relative to the entry of vessels belonging July 3, 1815. to the Provinces of Spain; but it is the President's desire that the intercourse with those provinces which are in a state of revolt should strictly conform to the duties of the government under the law of nations, the act of Congress and the treaties with foreign powers. "1. There is no principle of the law of nations, which requires us to exclude from our ports the subjects of a foreign power, in a state of insurrection against their own government. It is not incumbent upon us to take notice of crimes & offences, which are committed against the municipal laws of another country, whether they are classed in the highest grade of Treason, or in the lowest grade of misdemeanor-Piracy is an offence against the law of nations & every civilized government undertakes to punish the pirate when brought within its jurisdiction, but an act of revolt or rebellion against a Sovereign must not be confounded with an act of Piracy, which is denominated hostility against the human race. "Any Merchant Vessel therefore which has not committed an offence against the law of nations, being freighted with a lawful cargo & conforming in all respects to the laws of the United States, is entitled to an entry at our Custom houses whatever Flag she may bear-She is also entitled to take on board a return Cargo & to depart from the United States with the usual clearance. "2. But while a public war exists between two foreign nations, or when a civil war exists in any particular nation, the provisions of the act of the 5 of June 1794 (3 vol. 88) must be strictly enforced. Under the cover of commercial intercourse, no enlistment must be permitted, except of the transient citizens or subjects of a foreign nation enlisting on board of the vessels belonging to their own country in the manner authorized by law-No vessels must be fitted for war, the force of armed vessels must not be augmented & military enterprises must not be set on foot within the territory & jurisdiction of the United States, with the intent to commit hostilities against any Prince or State with whom the United States are at peace-These prohibitions however do not affect the right of the American citizens to sell in a course of fair trade, any articles of American product or manufacture, nor the right of foreign merchant vessels to purchase and carry any such articles. "3. There are two treaties in which the subjects of Spain are interested. First, the treaty of 1795, between the United States & Spain, and |