sion of the existence of insurgency brings into operation. the neutrality laws, and the English courts have made similar decisions in regard to the foreign enlistment act.

The right of visit and search has been claimed by insurgents from time to time, as well as by the established State during insurrection. The United States has opposed these claims when advanced by the established State, and even more positively when advanced by the insurgents.

Section 4295 of the United States Revised Statutes made it lawful for a private vessel to resist the aggression of an insurgent not yet recognized as a belligerent. This statute provides:

The commander and crew of any merchant vessel of the United States. owned wholly or in part by the citizens thereof, may oppose and defend against any aggression, search, restraint, depredation, or seizure which shall be attempted upon such vessel, or upon any other vessel so owned, by the commander or crew of any armed vessel whatsoever, not being a public armed vessel of some nation in amity with the United States, and may subdue and capture the same; and may also retake any vessel so owned which may have been captured by the commander or crew of any such armed vessel, and send the same into any port of the United States.

Instructions. Instructions were sent by the Navy Department to Capt. J. R. Jarvis at the time of the Mexican insurrection, 1858-1860, as follows:

*

NAVY DEPARTMENT, July 27, 1858.

* * You will at all times afford protection to the citizens of the United States and their property, and should occasion arise, protect any vessel of the United States from search or detention on the high seas by the armed ships of any other power. 9, S. Ex. Doc. No. 29, p. 2, 1st sess. 26th Cong., 1859-60.)

(Vol.

At the time of the Chilean insurrection the Secretary of the Navy, Mr. Tracy, on March 26, 1891, gave to Admiral Brown, who was sent to relieve Admiral McCann, quite full instructions.

On the 4th of March the department sent to Rear Admiral McCann, by telegraph, the following instructions in cipher :

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Insurgent vessels, although outlawed by Chilean Government, are not pirates unless committing acts of piracy. Observe strict

neutrality. Take no part in troubles further than to protect American interests. Take whatever measures are necessary to prevent injury by insurgent vessels to lives or property of American citizens, including American telegraph cables. Endeavor to delay bombardment by insurgents until American citizens and property are removed, using force, if necessary, only as a last resort, and when serious injury is threatened. American vessels seized by the insurgents without satisfactory compensation are liable to be recovered forcibly, but you should investigate matter fully before taking extreme measures, and use every precaution to avoid such measures if possible."

As a further and more explicit guide for your action you are directed:

(1) To abstain from any proceedings which shall be in the nature of assistance to either party in the present disturbance, or from which sympathy with either party could be inferred.

(2) In reference to the ships which have been declared outlawed by the Chilean Government, if such ships attempt to commit injuries or depredations upon the person or property of Americans, you are authorized and directed to interfere in whatever way may be deemed necessary to prevent such acts; but you are not to interfere except for the protection of the lives or property of American citizens.

(3) Vessels or other property belonging to our citizens which may have been seized by the insurgents upon the high seas and for which no just settlement or compensation has been made are liable to forcible recovery; but the facts should be ascertained before proceeding to extreme measures and all effort should be made to avoid such measures.

(4) Should bombardment of any place, by which the lives or property of Americans may be endangered, be attempted or threatened by such ships, you will, if and when your force is sufficient for the purpose, require them to refrain from bombarding the place until sufficient time has been allowed for placing American life and property in safety.

You will enforce this demand if it is refused, and if it is granted, proceed to give effect to the measures necessary for the security of such life or property.

your ships will

In the case of

(5) In reference to the granting of asylum, not, of course, be made a refuge for criminals. persons other than criminals, they will afford shelter wherever it may be needed, to Americans first of all, and to others, including political refugees, as far as the claims of humanity may require and the service upon which you are engaged permit.

The obligation to receive political refugees and to afford them an asylum is, in general, one of pure humanity. It should not be continued beyond the urgent necessities of the situation, and should in no case become the means whereby the plans of contend

ing factions or their leaders are facilitated. You are not to invite or encourage such refugees to come on board your ship, but, should they apply to you, your action will be governed by considerations of humanity and the exigencies of the service upon which you are engaged. When, however, a political refugee has embarked, in the territory of a third power, on board an American ship as a passenger for purposes of innocent transit, and it appears upon the entry of such ship into the territorial waters that his life is in danger, it is your duty to extend to him an offer of asylum.

(6) Referring to paragraph 18, page 137, of the Navy Regulations of 1876, which is as follows:

"If any vessel shall be taken acting as a vessel of war or a privateer without having proper commission so to act, the officers and crew shall be considered as pirates and treated accordingly." You are informed that this paragraph does not refer to vessels acting in the interests of insurgents and directing their hostilities solely against the State whose authority they have disputed. It is only when such vessels commit piratical acts that they are to be treated as pirates, and, unless their acts are of such a character or are directed against the persons or property of Americans you are not authorized to interfere with them.

(7) In all cases where it becomes necessary to take forcible measures. force will only be used as a last resort, and then only to the extent which is necessary to effect the object in view. (H. Ex. Doc. No. 91, 52d Cong., 1st sess., p. 245.)

In a telegram of May 16, 1891, in regard to the insurgent steamer Itata which had left the United States without clearance papers and contrary to instructions of port officials, the Secretary of the Navy said to Admiral Brown:

If Itata is found in the territorial waters of any government except Chile do not seize, but watch and telegraph department. Answer. (H. Ex. Doc. No. 91, 52d Cong., 1st sess., p. 256)

Navy regulations. In time of peace lawful commerce on the high sea in vessels under the flag which they are entitled to fly is free from interference by foreign cruisers. Any such interference would be regarded as a breach of unquestionable rights..

United States Navy Regulations, 1909, regarding intercourse with foreigners, provide as to the duties of the commander in chief:

340. (1) He shall exercise great care that all under his command scrupulously respect the territorial authority of foreign civilized nations in amity with the United States.

342. The use of force against a foreign and friendly State, or against anyone within the territories thereof, is illegal. The right of self-preservation, however, is a right which belongs to States as well as to individuals, and in the case of States it includes the protection of the State, its honor, and its possessions, and the lives and property of its citizens against arbitrary violence, actual or impending, whereby the State or its citizens may suffer irreparable injury. The conditions calling for the application of the right of self-preservation can not be defined beforehand, but must be left to the sound judgment of responsible officers, who are to perform their duties in this respect with all possible care and forbearance. In no case shall force be exercised in time of peace otherwise than as an application of the right of self-preservation as above defined. It must be used only as a last resort, and then only to the extent which is absolutely necessary to accomplish the end required. It can never be exercised with a view to inflicting punishment for acts already committed.

345. So far as lies within their power, commanders in chief and captains of ships shall protect all merchant vessels of the United States in lawful occupations and advance the commer cial interests of this country, always acting in accordance with international law and treaty obligations.

Conclusion. It is evident that the right of visit and search is regarded as a right which may be lawfully exercised only in time of war. Whatever other measures as regards foreign vessels the parent State or insurgents may take in time of insurrection, they may not resort to visit and search on the high sea. Orders issued by the authorities of the United States have enjoined resistance to the exercise of visit and search under such circumstances. The law sanctions such resistance even by private vessels. The Navy regulations enjoin upon naval commanders the protection of merchant vessels of the United States from visit and search except by lawfully authorized vessels in time of war.

Solution I (a).-The comamnder of the United States cruiser should, if possible, afford the merchant vessel the necessary protection from visit and search.

Situation I (b).-Insurgency and blockade. In lectures on "Insurgency," delivered by the present lecturer before the Naval War College in 1900, it was said:

Finally, insurgency may be regarded as a fact which is generally accepted in international practice. The admission of this

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fact is by such domestic means as may seem expedient. This admission is made with the object of bringing to the knowledge of citizens, subjects, and officers of the State such facts and conditions as may enable them to act properly. In the parent State the method of conducting the hostilities may be a sufficient act of admission and in a foreign State the enforcement of a neutrality law. The admission of insurgency by a foreign State is a domestic act which can give no offense to the parent State as might be the case in the recognition of belligerency. Insurgency is not a crime from the point of view of international law. A status of insurgency may entitle the insurgents to freedom of action in lines of hostile conflict which would not otherwise be accorded, as was seen in Brazil in 1894 and in Chile in 1891. It is a status of potential belligerency which a State, for the purpose of domestic order, is obliged to cognize. The admission of insurgency does not place the foreign State under new international obligations as would the recognition of belligerency, though it may make the execution of its domestic laws more burdensome. It admits the fact of hostilities without any intimation as to their extent, issue, righteousness, etc. * * The admission

of insurgency is the admission of an easily discovered fact. The recognition of belligerency involves not only a recognition of a fact, but also questions of policy touching many other considerations than those consequent upon the simple existence of hostilities. (Wilson, Lectures on Insurgency, 1900, pp. 16, 17.)

Blockade in Chilean insurrection, 1891.-Prof. Moore, lecturing before the Naval War College in 1901, also considered the matter of insurgency and commerce under Situation V, and gave a brief statement of the action of the insurgent vessels in Chilean waters in 1891, as follows:

When the revolution was announced the British naval forces in Chile were instructed by the Admiralty to "take no part except protection of British interests." Early in the conflict the congressional deputation on the insurgent fleet notified the Government authorities and the foreign representatives that Iquique and Valparaiso would be blockaded on February 1, 1891. The Government declared that the blockade would be illegal, and urged the diplomatic corps to protest against it. At the request of the minister for foreign affairs, the diplomatic representatives of France, Germany, Great Britain, and the United States met at the foreign office to discuss the subject. On consulting they agreed that the blockade would be illegal, but that they could not directly protest against it, as this would involve a recognition of the insurgent fleet, which the Government had declared to be piratical. As a compromise they instructed the consuls to protest