Spanish-American states. belligerency, the question of recognition was determined solely by the Executive. In the case of the Spanish-American republics, of Texas, of Hayti, and of Liberia, the President, before recognizing the new state, invoked the judgment and cooperation of Congress; and in each of these cases provision was made for the appointment of a minister, which, when made in due form, constitutes, as has been seen, according to the rules of international law, a formal recognition. In numerous other cases, the recognition was given by the Executive solely on his own responsibility. The question of the power to recognize has, however, been specifically discussed on various occasions. January 1, 1819, a discussion took place in the Cabinet of Monroe on a draft by Mr. Adams, as Secretary of State, of an instruction to Mr. Rush announcing the President's intention at no remote period to recognize the government of Buenos Ayres. A question arose as to the form of recognition. Mr. Crawford said that if an acknowledgment was to take place he should prefer to make it, not by granting an exequatur to a consul, but by sending a minister there, because the Senate must then act upon the nomination, which would give their sanction to the measure. Mr. Wirt added that the House of Representatives must also concur by assenting to an act of appropriation. The President, laughing, said that as those bodies had the power of impeachment it would be convenient to have them thus pledged beforehand. Mr. Adams observed that his "impressions were altogether different. I thought it not consistent with our national dignity," said Mr. Adams, "to be the first in sending a minister to a new power. It had not been done by any European power to ourselves. As to impeachment, I was willing to take my share of risk of it for this measure whenever the Executive should deem it proper. And, instead of admitting the Senate or House of Representatives to any share in the act of recognition, I would expressly avoid that form of doing it which would require the concurrence of those bodies. It was, I had no doubt, by our Constitution an act of the Executive authority. General Washington had exercised it in recognizing the French Republic by the reception of Mr. Genest. Mr. Madison had exercised it by declining several years to receive, and by finally receiving, Mr. Onis; and in this instance. I thought the Executive ought carefully to preserve entire the authority given him by the Constitution, and not weaken it by setting the precedent of making either House of Congress a party to an act which it was his exclusive right and duty to perform. * * * "Mr. Crawford said he did not think there was anything in the objection to sending a minister on the score of national dignity, and that there was a difference between the recognition of a change of government in a nation already acknowledged as sovereign, and the recognition of a new nation itself. He did not, however, deny, but admitted, that the recognition was strictly within the powers of the Executive alone, and I did not press the discussion further." a In his message of March 8, 1822, presenting the question of recognizing the "Spanish provinces in this hemisphere" to Congress, President Monroe stated that he did so in order that there might be "such cooperation between the two departments of the Government as their respective rights and duties may require." He then proceeded to express the opinion that "the provinces which have declared their independence and are in the possession of it ought to be recognized;" and he concluded by saying: "Should Congress concur in the view herein presented, they will doubtless see the propriety of making the necessary appropriations for carrying it into effect." An appropriation of $100,000 was made for such missions to the independent nations of the American continent, as the President of the United States may deem proper." In his special message of December 21, 1836, President Jackson observed that a resolution, which had been introduced Texas. in the House of Representatives, "distinctly intimated that the expediency of recognizing the independence of Texas should be left to the decision of Congress. In this view, on the ground of expediency, I am," said President Jackson, "disposed to concur, and do not, therefore, consider it necessary to express any opinion as to the strict constitutional right of the Executive, either apart from or in conjunction with the Senate, over the subject." Congress, however, merely incorporated in the civil and diplomatic appropriations act of March 3, 1837, a provision “for the salary and outfit of a diplomatic agent to be sent to the Republic of Texas, whenever the President of the United States may receive satisfactory evidence that Texas is an independent power, and shall deem it expedient to appoint such minister." a 66 What authority is to recognize Buchanan. * a new government claiming to exist over an island, which constituted an Statement of Mr. integral part of the dominions of a sovereign, with whom our relations are of a friendly character? This act of high sovereign power, certainly can not without instructions, be performed by a consul, whose functions are purely commercial; and he ought never under any conceivable circumstances, to assume such a high responsibility. In the United States such a recognition is usually effected, either by a nomination to, and confirmation by the Senate of a Memoirs of John Quincy Adams, IV. 205-206. Richardson, II. 116–118. "An act making an appropriation to defray the expenses of missions to the independent nations on the American continent." (3 Stat. 678.) d5 Stat. 170. a Diplomatic or Consular agent to the new Government, or by an act of Congress. The latter course was adopted, in the recognition of the independence of the Spanish-American Republics. Mr. Buchanan, Sec. of State, to Mr. Marston, consul at Palermo, Oct. 31, 1848, 10 MS. Dispatches to Consuls, 489. The circumstances of this case are given, supra, 112-113. Mr. Buchanan, after the passage above quoted, expressly refers to the act of May 4, 1822, the terms of which have just been given. (Supra, 85, 243.) Mr. Mann's instructions. "Should the new Government prove to be, in your opinion, firm and stable, the President will cheerfully recommend to Congress, at their next session, the recognition of Hungary, and you might intimate, if you should see fit, that the President would in that event be gratified to receive a diplomatic agent from Hungary in the United States by or before the next meeting of Congress, and that he entertains no doubt whatever that in case her new Government should prove to be firm and stable, her independence would be speedily recognized by that enlightened body." Mr. Clayton, Sec. of State, to Mr. Mann, special and confidential agent to Hun- Wharton, Int. Law Dig., I. 553, referring to this passage, says: "As to this it It was maintained by Mr. Seward that the recognition of revolutionary or reactionary governments belongs exclusively to the Executive, and can not be determined internationally by Congressional action. Position of Mr. Mr. Seward, Sec. of State, to Mr. Dayton, April 7, 1864, MS. Inst. France, That the power of recognition belongs exclusively to the Executive is maintained in: Memorandum on the method of 'recognition' of foreign governments and foreign states by the Government of the United States, 1789-1897," S. Doc. 40, 54 Cong. 2 Sess.; "Memorandum upon the power to recognize the independence of a new foreign state,” S. Doc. 56, 54 Cong. 2 Sess. Decisions of the Courts. "It is for governments to decide whether they will consider St. Domingo as an independent nation, and until such decision shall be made, or France shall relinquish her claim, courts of justice must consider the ancient state of things as remaining unaltered, and the sovereign power of France over that colony as still subsisting." Marshall, C. J., Rose v. Himely (1808), 4 Cranch, 239, 272. The same principle is laid down in Gelston v. Hoyt, 3 Wheat. 324; The Nueva Anna, 6 Wheat. 193; Kennett v. Chambers, 14 Howard, 38; U. S. v. Pico, 23 Howard, 326; Jones v. United States (1890), 137 U. S. 202, 212–213. In judicial proceedings involving the question of the existence of a particular government, the action of the Department of State “has been confined to furnishing, upon application of any court, a statement of the actual status of diplomatic relations between the United States and the government in question." (Mr. Foster, Sec. of State, to Señor Bolet Peraza, Venez. min., tel., Sept. 21, 1892, For. Rel. 1892, 644. ) That courts may take notice of existing sovereignties from the fact of their continuous existence in history, see Consul of Spain v. The Conception, 2 Wheel. Cr. Cas. 597; 1 Brunner, Col. Cas. 597; S. P., The Maria Josepha, 2 Wheel. Cr. Cas. 600; 1 Brunner, Col. Cas. 500. Compare Williams v. Suffolk Ins. Co., 13 Pet. 415, affirming 3 Sumner, 270. Where property, captured in the autumn of 1813, was claimed by a native of Buenos Aires, who carried on trade there with his father and sister as partners, and who had been "admitted a freeman of the new Government," which the United States had not recognized, he was accorded the rights of a Spanish subject, under the treaty between the United States and Spain of 1795. The Nereide (1815), 9 Cranch, 388. The course of the United States with reference to a revolted portion of a foreign nation is regulated and directed by the legislative and executive departments of the Government, and not by the judicial department. If the Government remains neutral, and recognizes the existence of a civil war, the courts can not consider as criminal those acts of hostility which war authorizes, and which the new government may direct against its enemy. The persons or vessels employed in the service of a territory whose belligerency has been recognized by this Government must be permitted to prove the fact of their being so employed by the same testimony as would be sufficient to prove that such person or vessel was employed in the service of an acknowledged state. The seal of such unacknowledged government can not be permitted to prove itself, but may be proved by such testimony as the nature of the case admits; and the fact that a person or vessel is in the service of such government may be proved without proving the seal. U. S. r. Palmer, 3 Wheat. 610. See the Estrella, 4 Wheat. 298. The Executive having recognized the existence of a state of war between Spain and her South American colonies, the courts of the union are bound to consider as lawful those acts which war authorizes, and which the new Governments in South America may direct against their enemy. Captures made under their commissions are to be treated. by the courts as other captures, and their legality can not be determined unless they were made in violation of the neutral rights of the United States. Divina Pastora, 4 Wheat. 52; Josefa Segunda, 5 Wheat. 338. The courts follow the Executive in the recognition of belligerency, even in the cases of domestic insurrection. The Prize Cases, 2 Black, 735; U. S. v. Yorba, 1 Wall. 412; U. S. v. Hutchings, 2 Wheel. C. C. 543; The Hornet, 2 Abbott (U. S.), 35; U. S. v. Baker, 5 Blatch. 6; 1 Brunner C. C. 489. See also Dana's Wheaton, note, § 23, pp. 34, 36. "It belongs to the political department to determine when belligerency shall be recognized, and its action must be accepted according to the terms and intention expressed.” The Three Friends (1897), 116 U. S. 1, 63. In this case the court followed the action of the Executive in recognizing a state of revolt or insurgency, as distinguished from belligerency, such appearing to be the Executive intention. See, particularly, Underhill v. Hernandez (1897), 168 U. S. 250. VII. CONTINUITY OF STATES. 1. TERRITORIAL CHANGES. $ 76. Mere territoral changes, whether by increase or by diminution, do not, so long as the identity of the state is preserved, affect the continuity of its existence or the obligations of its treaties. Prussia, after the peace of Tilsit, in 1807, lost almost a third of its territory. The Kingdom of Saxony, by the treaty of Vienna, was reduced to a half of its previous dimensions. France, in 1815 and 1871, and Turkey, in 1829 and 1878, both were deprived of territory. Austria lost, in 1859, its richest province, Lombardy, and, in 1866, Venetia. In none of these cases was the continuity or the identity of the state destroyed, nor was the general force of its international obligations held to be impaired. Martens, Traité de Droit Int., I. § 68. Rivier, Principes du Droit des Gens, I. 63-65. 2. CHANGES IN POPULATION. $ 77. What has been said as to territorial changes applies also to changes in population. Population is incessantly renewed; and its numbers and racial character may be strongly modified, even without any gain or loss of territory. When the Great Elector received the Protestant French, the population of the countries which went to make up the Prussian monarchy acquired an element speaking a different language, and of great intellectual, moral, and numerical importance. From the point of view of international law, the states concerned suffered no |