disturbances accompanied by armed resistance to the authority of the established Government of Spain." In his message of December 2, 1895, he mentions the status as that of an "insurrection." The Supreme Court in various decisions has since that time recognized "the distinction between recognition of belligerency and recognition of a condition of political revolt, between recognition of the existence of war in a material sense and of war in a legal sense," regarding a body of men "as associated together in a common political enterprise and carrying on hostilities against the parent country" as insurgents. (The Three Friends, 166 U. S. Sup. Ct. Repts., p. 1.)

The use of the word "recognition" with both insurgency and belligerency may be misleading, The recognition of belligerency is an act of a State which may have other grounds than the simple existence of a disturbed condition and may be delayed or hastened by political or other reasons. The recognition of belligerency gives an international status to the belligerents. Recognition of belligerency in general gives to the recognized belligerent, so far as the recognizing State is concerned, the same war rights as are possessed by the established State.

Insurrection implies the existence of war in the material sense. It may be necessary for a State to inform its citizens of the existence of this condition by simply announcing the fact. The nature of the act is rather one of admitting a fact in regard to which there is abundant evidence than the recognition of a status in regard to which there may be doubt and which brings new obligations upon the recognizing State. It would seem expedient that the difference should be indicated as perhaps by the use of the phraseology, "recognition of belligerency " and "admission of insurgency." Such a distinction would be consistent with the argument of the Supreme Court in the case cited above in which it is said of the President's proclamations:

We are thus judicially informed of the existence of an actual conflict of arms in resistance 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.

Secretary Hay, in 1899, admitted the necessity which might arise for dealing with insurgents in a letter to Mr. Bridgman, Minister to Bolivia:

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. (U. S. Foreign Relations, 1899, p. 105.)

The "free party" might, by the statement of the situation, be regarded as insurgents, and insurgency might be admitted to exist in the neighborhood of the port.

Situation I (a). In the situation now under consideration an armed vessel of the "free party," an insurgent party of State X, is about to visit and search a merchant vessel of the United States on the high sea, when a United States cruiser comes near, and the master of the merchant vessel asks the commander of the United States cruiser for protection from visit and search.

Visit and search. Visit and search, as usually understood, is a form of interference with merchant vessels on the high sea or in belligerent waters, which is tolerated in time of war, in order that a belligerent may learn the nationality and relation of the vessels visited to the

war.

Visit and search does not, like the seizure discussed in Situation III (b) of 1904, necessarily involve the loss or possible loss of property. The delay and inconvenience occasioned by visit and search may be insignificant. The existence of insurrection may interfere to some extent with freedom of commerce, and some interference is usually tolerated. The question which arises under this situation is whether the interference may extend to the visit and search of vessels of foreign States on the high

sea.

Visit and search in the time of war is one of the rights of war which has existed from the early days of war

upon the sea. It is stated clearly by Lord Stowell in 1799 in the case of the Maria:

The right of visiting and searching merchant ships upon the high seas, whatever be the ships, whatever be the cargoes, whatever be the destination, is an incontestable right of lawfully commissioned cruisers of a belligerent nation. (C. Robinson's Admiralty Reports, p. 340.)

The courts of the United States have repeatedly affirmed that "the right of search is a strictly belligerent right." (The Antelope, 10 Wheat., U. S. Sup. Ct. Repts., p. 66; the Marianna Flora, 11 ibid., p. 1.)

Visit and search of vessels suspected of slave trade has been allowed in time of peace by treaty, and in some instances the enforcement of customs and similar regulations has in practice extended to interference with vessels on the high seas. When a vessel is suspected of piracy measures may be taken to ascertain its character. Such measures must be taken with care, as States are jealous of the rights of their ships on the high seas.

(a) Visit by established State. The right of visit and search for special reasons has been claimed at times by various States. The policy of the United States has been uniformly opposed to the admission of any such right except in time of war. The claim of certain States to a right to visit and search for the suppression of slave trade even was denied by the United States except when it was in accord with treaty stipulations.

The right of cruisers of an established State to visit and search in time of insurrection foreign vessels near the coast or suspected of aiding the insurrection has often been claimed. Of the exercise of visit and search by a Spanish cruiser upon the American steamer El Dorado in 1855 the Secretary of the Navy, in a communication to Capt. Crabbe, said:

This act is regarded as an exercise of power which the United States have ever firmly refused to recognize, and to which they will never submit. In the absence of a declaration of war, which alone belongs to Congress, our officers in command of ships of war would have no right to pursue and retaliate for such an act. But, if present when the offense is prepetrated upon a vessel

rightfully bearing the flag of our country, the officer would be regarded as derelict in his duty if he did not promptly interpose, relieve the arrested American ships, prevent the exercise of this assumed right of visitation or search, and repel the interference by force. (S. Ex. Doc. No. 1, 35th Cong., special session.)

Spanish authorities claimed the right of visit and search in 1869 during the uprising in Cuba. Moore states. the history of the case briefly, as follows:

On the 24th of March Capt. Gen. Dulce issued another decree, in which it was declared that vessels captured in Spanish waters or on the high seas near the island of Cuba having on board men, arms, and munitions of war, or articles that could in any manner contribute to promote or foment the insurrection, whatever their derivation and destination, should, after examination of their papers and register, de facto be considered as enemies of the integrity of the territory and be treated as pirates in accordance with the ordinances of the navy, and that all persons captured in such vessels would, without regard to numbers, immediately be executed. Referring to this decree, Mr. Fish, who was then Secretary of State, said that the captain general of Cuba seemed to have "overlooked the obligations of his Government pursuant to the law of nations, and especially its promises in the treaty between the United States and Spain of 1795." Under "that law and treaty," said Mr. Fish, the United States expected "for their citizens and vessels the privilege of carrying to the enemies of Spain, whether those enemies were 'Spanish subjects or citizens of other countries,' subject only to the requirements of a legal blockade, all merchandise not contraband of war." Articles contraband of war "when destined for the enemies of Spain" were "liable to seizure on the high seas," but the right of seizure was "limited to such articles only, and no claim for its extension to other merchandise, or to persons not in the civil, military, or naval service of the enemies of Spain," would be "acquiesced in by the United States." The United States could not, Mr. Fish declared, "assent to the punishment by Spanish authorities of any citizen of the United States for the exercise of a privilege to which he might be "entitled under public law and treaties," and in conclusion he expressed the hope that the decree would be recalled or that such instructions would be given as would prevent "its illegal application to citizens of the United States or their property." (2 Moore, International Arbitration, p. 1021.)

Other cases involving the principle of visit and search or detention arose between Spain and the United States during the periods of insurrections in Cuba the latter half of the nineteenth century. The position of the

United States was consistently maintained that there could be no visit and search of merchant vessels of the United States by the cruisers of a foreign State except in time of war, and that the existence of insurrection did not bring into operation the rules of war which permitted such interference with commerce.

(b) Visit and search by insurgent cruisers.-A body of insurgents may obtain sufficient control of the sea to be able to exercise some degree of supervision of commerce with ports of the State with which they are striving. They may even proclaim that they are an organized political unity capable of declaring war, and that after such declaration they are entitled to claim the rights of belligerents, and as one of these rights the right of visit and search. It is, however, recognized as a principle of international law that full belligerent rights are obtained by an insurrectionary body, either through recognition of belligerency by the parent State which gives general belligerent rights or through recognition of belligerency by a foreign State which gives belligerent rights as far as the recognizing State is concerned. Certain acts are now tolerated by foreign States during an insurrection even when there is no thought of recognizing belligerency. It is admitted that when the insurgents are in actual control of a region many administrative acts are valid.

Mr. Chief Justice Fuller, in the case of Underhill v. Hernandez, November 29, 1897, says:

Revolutions or insurrections may inconvenience other nations, but by accommodation to the facts the application of settled rules is readily reached. And where the fact of the existence of war is in issue in the instance of complaint of acts committed within foreign territory it is not an absolute prerequisite that that fact should be made out by any acknowledgment of belligerency, as other official recognition of its existence may be sufficient proof thereof. (168 U. S. Sup. Ct. Repts., p. 250.)

English, American, and other courts have recognized that the existence of an insurrection changes the status of certain persons and may bring new rights and duties. The United States courts have decided that the admis