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at their respective ports. A protest was made by the consular body at Iquique, January 18, 1891 to the captain of the Almirante Cochrane as follows: "The consular body being of opinion that the blockade notified to them will cause considerable damage to the persons and property of neutrals represented by them, protest against the act, and reserve the right to claim compensation for losses incurred." A similar protest was made by the consular corps at Valparaiso.

At the same time Mr. Kennedy, then British minister at Santiago, telegraphed for instructions as to the course which should be pursued in the event of a blockade being established. The views of the foreign office on the subject may be found in a telegram to a firm in Glasgow, January 24, 1891, as follows: "Assuming effective blockade to exist, escort through it can not be given." (International Law Situations with Solutions and Notes, 1901, p. 133.)

Prof. Moore, after full discussion, concludes:

By this review it appears—

1. That the British Government admitted the right of the insurgents to establish a blockade on the usual condition of effectiveness.

2. That the British naval officers recognized the right of the insurgents to intercept contraband of war, and allowed them to a limited extent, but not as of right, to obtain coal and supplies for their fleet from neutral vessels.

3. That the right to collect duties was acknowledged to belong to the insurgents wherever they maintained complete and effective possession of the place. (Ibid., p. 118.)

Discussion in 1902.-The matter of attempt of insurgents to establish blockades was again considered in 1902, and the present lecturer was requested to put the results of the discussion in form for presentation to the Navy Department, and thence it was transmitted to the State Department for an opinion. Secretary Hay gave a carefully written opinion conforming in almost every respect to that expressed at the. War College, though a little less definite in regard to the matter of admission of insurgent status. The letter is of such importance that even though printed 10 years ago the essential parts may well be printed again. Secretary Hay said:

Blockade of enemy ports is, in its strict sense, conceived to be a definite act of internationally responsible sovereign in the

exercise of a right of belligerency. Its exercise involves the successive stages of, first, proclamation by a sovereign State of the purpose to enforce a blockade from an announced date. Such proclamation is entitled to respect by other sovereigns conditionally on the blockade proving effective. Second, warning of vessels approaching the blockaded port under circumstances preventing their having previous actual or presumptive knowledge of the international proclamation of blockade. Third, seizure of a vessel attempting to run the blockade. Fourth, adjudication of the question of good prize by a competent court of admiralty of the blockading sovereign.

Insurgent "blockade," on the other hand, is exceptional, being a function of hostility alone, and the right it involves is that of closure of avenues by which aid may reach the enemy.

In the case of an unrecognized insurgent, the foregoing conditions do not join. An insurgent power is not a sovereign maintaining equal relations with other sovereigns, so that an insurgent proclamation of blockade does not rest on the same footing as one issued by a recognized sovereign power. The seizure of a vessel attempting to run an insurgent blockade is not generally followed by admiralty proceedings for condemnation as good prize, and if such proceedings were nominally resorted to a degree of the condemning court would lack the title to that international respect which is due from sovereign States to the judicial act of a sovereign. The judicial power being a coordinate branch of government, recognition of the government itself is a condition precedent to the recognition of the competency of its courts and the acceptance of their judgments as internationally valid.

To found a general right of insurgent blockade upon the recognition of belligerency of an insurgent by one or a few foreign powers would introduce an element of uncertainty. The scale on which hostilities are conducted by the insurgents must be considered. In point of fact, the insurgents may be in a physical position to make war against the titular authority as effectively as one sovereign could against another. Belligerency is a more or less notorious fact of which another government, whose commercial interests are affected by its existence, may take cognizance by proclaiming neutrality toward the contending parties, but such action does not of itself alter the relations of other governments which have not taken cognizance of the existence of hostilities. Recognition of insurgent belligerency could merely imply the acquiescence by the recognizing Government in the insurgent seizure of shipping flying the flag of the recognizing State. It could certainly not create a right on the part of the insurgents to seize the shipping of a State which has not recognized their belligerency.

It seems important to discriminate between the claim of a belligerent to exercise quasi sovereign rights in accordance with the tenets of international law and the conduct of hostilities by an insurgent against the titular government.

The formal right of the sovereign extends to acts on the high seas, while an insurgent's right to cripple his enemy by any usual hostile means is essentially domestic within the territory of the titular sovereign whose authority is contested. To deny to an insurgent the right to prevent the enemy from receiving material aid can not well be justified without denying the right of revolution. If foreign vessels carrying aid to the enemies of the insurgents are interfered with within the territorial limits, that is apparently a purely military act incident to the conduct of hostilities, and, like any other insurgent interference with foreign property within the theater of insurrection, is effected at the insurgent's risk.

To apply these observations to the four points presented in Prof. Wilson's memorandum, I may remark:

1. Insurgents not yet recognized as possessing the attributes of full belligerency can not establish a blockade according to the definition of international law.

2. Insurgents actually having before the port of the State against which they are in insurrection a force sufficient, if belligerency had been recognized, to maintain an international law blockade, may not be materially able to enforce the conditions of a true blockade upon foreign vessels upon the high seas, even though they be approaching the port. Within the territoriai limits of the country, their right to prevent the access of supplies to their enemy is practically the same on water as on land—a defensive act in the line of hostility to the enemy.

3. There is no call for the Government of the United States to admit in advance the ability of the insurgents to close, within the territorial limits, avenues of access to their enemy. That is a question of fact to be dealt with as it arises. But in no case would the insurgents be justified in treating as an enemy a neutral vessel navigating the internal waters-their only right being, as hostiles, to prevent the access of supplies to their domestic enemy. The exercise of this power is restricted to the precise end to be accomplished. No right of confiscation or destruction of foreign property in such circumstances could well be recognized, and any act of injury so committed against foreigners would necessarily be at the risk of the insurgents. The question of the nature and mode of the redress which may be open to the Government of the injured foreigners in such a case hardly comes within the purview of your inquiry, but I may refer to the precedents heretofore established by this Government in enunciation of the right to recapture American vessels seized by insurgents. (International Law Situations-Naval War College, 1902, p. 80.)

Opinion in 1860.—The present tendency is therefore more liberal than in some earlier cases.

At the time of the Mexican insurrection of 1858-1860 the Navy Department instructed Capt. Jarvis as follows:

*

NAVY DEPARTMENT, March 13, 1860.

* Statements having been made which lead to the belief that arrangements are making by what is known as the Miramon government of Mexico to establish a blockade of Vera Cruz and other ports on the Gulf of Mexico, the President has decided that no such blockade will be recognized by the United States. You are, therefore, directed to employ the naval force under your command to afford American vessels free ingress and egress at all Mexican ports and fully to protect them. (Vol. 9, S. Ex. Doc. No. 29, p. 3, 1st sess. 35th Cong., 1859–60.)

Summary. As the opinions of publicists and the practice of the United States and other States are set forth in Situation V of 1901, Situation VI of 1902, Situation III of 1904, and Situation VII of 1907, reference for certain aspects of insurgency may be made to these volumes. Prof. Moore in 1901, referring more particularly to the attempts of insurgents to interfere with contraband, says:

From what has been shown it may be argued that, without regard to the recognition or non-recognition of belligerency, a party to a civil conflict who seeks to prevent, within the national jurisdiction and at the scene of hostilities, the supply of arms and munitions of war to his adversary commits not an act of injury, but an act of self-defense, authorized by the state of hostilities; that, the right to carry on hostilities being admitted, it seems to follow that each party possesses, incidentally, the right to prevent the other from being supplied with the weapons of war; and that any aid or protection given by a foreign government to an individual to enable him with impunity to supply either party with such articles is to that extent an act of intervention in the contest. (International Law Situations, 1901, p. 137.)

The practice toward the end of the nineteenth century was to refrain so far as possible from interference with the actual conflict in a foreign State while protecting the property and rights of nationals. The claims of nationals have often been for protection which would involve interference with the conflict and a participation favorable to one or the other party. Mr. Hay stated

that when the contest had assumed the character of an insurrection

in no case would the insurgents be justified in treating as an enemy a neutral vessel navigating the internal waters-their only right being, as hostiles, to prevent the access of supplies to their domestic enemy. The exercise of this power is restricted to the precise end to be accomplished. No right of confiscation or destruction of foreign property in such circumstances could well be recognized, and any act of injury so committed against foreigners would necessarily be at the risk of the insurgents.

In the situation under consideration the insurgents having a sufficient force before the port to effectively prevent ingress are acting within their rights in preventing the entrance of the merchant vessel of the United States, as they have this right "to prevent the access of supplies to their domestic enemy." Insurgents do not possess the right to condemn vessels as prize, which is strictly a war right. Insurgents have not a responsible government, and their conduct may be out of accord with that obligatory among States. The authorities of a foreign State may, therefore, protect the rights and property of their nationals so long as the protection does not extend to interference in the contest. To interfere to obtain the release of the merchant vessel which the insurgents have in their possession, in order that the vessel may proceed to the other party with its cargo, if of the nature of contraband, would not be justifiable unless on condition that the cargo would not be carried to the opposing party. If the cargo and vessel were innocent, release could be demanded.

Solution I (b).—If the only reason for the seizure of the merchant vessel is that it was about to enter a port which the insurgents have declared blockaded, the commander should grant the master's request, though the commander might require that the merchant vessel proceed to some other port.

Situation I (c)—Interference with foreign property.— Interference with foreign property has often taken place within recent years and the treatment of the insurgents has varied. In general there has been a tendency to

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