In rejoinder the United States contended that the President's proclamation did not expressly recognise a state of war; that the recognition of a state of war by the Supreme Court was itself based on the consequences of the British proclamation; that it was the duty of a friendly nation towards a State temporarily disturbed by insurrection to forbear from conceding belligerent privileges to an insurgent body in anticipation of their concession by the State against which the insurrection was directed; that the proclamation was not justified by any necessity in the interests of British subjects; and, finally, that the United States could not consent to the waiving of any claim on the ground that it involved a point of national honour (d). At this juncture the negotiations between the two Governments for a peaceful adjustment of the various causes of dispute existing between them threatened to break down; for the reason that Great Britain refused to submit to arbitration any claim arising out of the recognition of the Southern Confederacy; whilst the United States, on the other hand, refused to submit the socalled "Alabama" claims to arbitration without this. In the result, however, and after several other abortive attempts at a settlement, it was finally agreed by the Treaty of Washington, 1871, to refer to the tribunal of arbitration "all claims growing out of the acts committed by the Alabama' and other vessels." The effect of this appears to have been to exclude the action of Great Britain in the matter of the recognition of the Southern Confederacy from the scope of the reference, as a direct subject. of pecuniary indemnity; whilst leaving it open to the United States to use it as evidence that Great Britain was at the time actuated by a conscious unfriendly purpose towards the United States, which might conceivably be regarded by the arbitrators as having a bearing on other alleged breaches of neutrality; and it was in fact in this character that the incident was dealt with in the presentment of the American case (e). It will be noticed that, on the question of the recognition of independence, the British Government adopted the view that this would depend on whether the insurgent States succeeded in fact in maintaining (d) Mr. Seward to Mr. Adams, 12th (e) Moore, Arb. i. 500, and 563. of January, 1867 (57 S. P. p. 1138). The their position as an independent community, and on whether they gave proof of a capacity for maintaining international relations; a position which was in fact never achieved. The recognition of belligerency, however, was accorded, on the ground that the Confederacy comprised an organised community, numbering several millions of persons, having a Government in full possession of a wide area of territory, and both in a position to carry on war, and intent on carrying on war, by sea. agents of such a body could not be treated as pirates; and in default must be treated as belligerents, and brought under the recognised rules of maritime war. The justification put forward by the British Government is now commonly recognised as sound. On the other hand, the views put forward by the United States on this occasion would appear to be altogether at variance with its recent practice in connection with the recognition of the State of Panama in 1903. That State seceded from the United Republic of Colombia on the 3rd of November, 1903. The United States recognised it as a de facto Government on the 6th of November; and as an independent State, with which it made a treaty, on the 18th of November; whilst at the same time it ignored the protests of the United Republic and refused to allow the Colombian troops to land (ƒ). GENERAL NOTES.-Belligerent Communities.-These are communities which, although still forming part of some existing State, are seeking to establish either their independence, or some alteration of the existing relation, by armed force. In such cases various questions are likely to present themselves for determination by other States, and incidentally also by their tribunals. Of these the most important are (1) whether such a community or body should be recognised as belligerent, and therefore as subject, although only to a qualified extent, to international law; and (2) in a case where the object of the revolt is severance, then under what conditions and at what stage such a community ought to be recognised as an independent State. Recognition of Belligerency. The right of one State to recognise the belligerent character of the subjects of another State, without incurring the imputation of hostility or unfriendliness, depends on a variety of considerations. In the first place, the insurgent community or body must have at its head an organised Government capable of carrying on war according to recognised rules and methods; next, there must be a war actually prevailing at the time; whilst, finally, the circumstances of the war must be such as to affect the interests of the State conceding such recognition, and to make some decision on the subject incumbent on it. If the insurgent community occupies territory situated in the midst of loyal provinces, then the question of recognition will scarcely arise, except, perhaps, in relation to responsibility for injuries affecting. foreign subjects (g). If, on the other hand, the insurgent community occupies territory adjoining that of some other State or States, then the question of recognition will be important from the point of view of the latter, in connection with the observance and enforcement of neutrality as between the contending parties. Finally, if the insurgent (f) See p. 156, infra. (g) Infra, p. 212. community is in a position to carry on war by sea, then the question of recognition will become important as regards all maritime Powers, for the reason that on this will depend the right of the insurgent Government to issue commissions and to interfere with neutral commerce (h). Whether such recognition should be accorded or not is a question for the political or executive department of Government, by whose action the Courts will be guided. It would seem that such recognition cannot be demanded as of right; for the reason that it is strictly a question of policy, and not of law (i). But once recognition is conceded it cannot be withdrawn unless the conditions upon which it depends have ceased to exist (k) A recognition of belligerency, if accorded, has the effect of conferring on the insurgent community, although only provisionally, and in relation to the conduct of hostilities, the rights and duties of a State in international law (1). It relieves the parent State from further responsibility, as regards any acts of the insurgent Government that may affect the interests of other States or their subjects. But at the same time it precludes it from assuming to close, as against other States, any ports or territory in the actual possession of the insurgents otherwise than by regular process of blockade; and also from interdicting to other States intercourse with the insurgent Government (m). It brings both parties under the recognised rules of war; and as regards maritime war, confers on both the right to visit and search neutral vessels on the high seas, to establish and enforce blockades, and to intercept and confiscate contraband of war. The position of the insurgents with respect to the parent State is a question only of policy or municipal law, and is not affected by their recognition by other States (n); although the treatment of insurgents as rebels and not as belligerents, in a case where their belligerent character had been recognised by other States, would probably be reprobated by international morality. The position of insurgents whose belligerency has not been recognised will be dealt with hereafter, in connection with cases bordering on piracy (o). Here it need only be said that such bodies or persons will not be treated as pirates, and that other States will not recognise any obligation of interfering with their operations, so long as they do not commit acts of aggression against the property or subjects of States other than that against which they are in rebellion. Recognition of Independence. With regard to the recognition of independence, some writers suggest that this cannot be admitted until either the parent State recognises the new order of things, or until the recovery of its ancient rights has become an impossibility (p). But so far as any practical rule can be deduced from historical examples, it seems to be this that if the insurgent community has established a de facto independence, as evidenced by the fact of the parent State (h) Hall, 33. (i) On this question, however, and also on the question of partial recognition, see Westlake, i, 55, 56. (k) On the subject generally, see Hall, 29. (1) See The Three Friends (166 U. S. 1; and Scott, at p. 752). (n) See Scott, p. 757, and cases there cited. (0) Infra, p. 300. having relinquished active efforts to re-establish its authority, and if it possesses an organised Government capable of maintaining relations of peace and war, then recognition by other States must follow; although some may be later in according it than others. 'No State is entitled to prolong its sovereignty by a mere paper assertion of right." But if the contest is still proceeding in fact, then a recognition of the independence of the insurgent community by a foreign State would be a hostile or unfriendly act, which the parent State would be entitled to resent (q). The position of the new State, in the case where the revolting province succeeds in establishing its independence, as regards rights and obligations of the parent State in which it was previously a participant and the position of the parent State in the case where it succeeds in re-establishing its authority, as regards the property or rights of the suppressed Government-will be considered hereafter in connection with the subject of the succession of States (r). SUCCESSION IN INTERNATIONAL LAW. THE UNITED STATES OF AMERICA v. MCRAE. Case.] DURING the American Civil War the Confederate Government and their agents had consigned goods and remitted money to the defendant, who was apparently domiciled in England. The defendant having sold the goods and received the sale moneys, a suit for an account was instituted against him by the United States Government, after the suppression of the rebellion, in the English Courts. The defendant put in no answer, and simply left the plaintiffs to make out their own title to relief. James, V.C., asked if the plaintiffs were willing to have the account taken as it would be taken between the Confederate Government on the one hand and the defendant on the other; but the plaintiffs declined to accept the decree in any form which would recognise the authority of the belligerent States or involve any privity with their agent. In view of this the suit was dismissed with costs. Judgment.] The Vice-Chancellor, in giving judgment, stated that he would deal with the case as if the plaintiffs had been the Government of India, and the defendant an agent of insurrec (q) See Historicus Letters, 9; for notable instances of recognition, Hall, 85: Taylor, 192. (r) Infra, pp. 72, 74. tionists there. What was at the outbreak of the rebellion the public property of the plaintiffs would still continue their property, and if at the end of the rebellion any such property capable of being identified could be traced to any person, the rightful owners would be entitled to apply for restitution. But moneys voluntarily contributed to the rebellion could not be recovered as moneys had and received to the use of the lawful Government. With regard to property taken by force from innocent persons, the right of possession would still remain in them. The learned Judge expressed an opinion that it was clear public universal law that any Government de facto succeeding another succeeded to all the public property of the displaced Power. Any such public property would, on the success of the new or restored Power, ipso facto vest in the latter; and it would have the right to call to account any agent, debtor, or accountant to or of the persons who had exercised the authority of the Government. But the right was only a right of succession or of representation; it was not a right paramount, but was derived through the suppressed authority, and could only be enforced in the same way and to the same extent, and subject to the same correlative obligations and rights as if that authority were seeking to enforce it. Assuming this to be true, it was not open to the plaintiffs to claim from the agent, and at the same time to repudiate all privity with him and his former principals. The learned Judge expressed himself satisfied that the plaintiffs' claim, as they had framed it, was based on their paramount title to what they alleged to be their own property, in respect of which they sought to treat the possession of the defendant as the possession of the agent of public plunderers, and in this part of the case the proceedings must wholly fail. There was no evidence that any money or goods of the plaintiffs (i.e., of the plaintiffs in their own right, as distinguished from their right as successors of the Government which had been suppressed) had ever reached the hands of the defendant, or that there were in his hands on or after the suppression of the rebellion any public moneys or goods which had become vested in the plaintiffs. If, following what is conceived to be the true meaning, we substitute the term "State" for the term "Government," for the reason that the |