to respect any blockade, or to allow their merchant-vessels to be stopped and searched on the high seas by the cruisers of either party. Inevitable collisions would ensue, which would not improbably drag neutral nations into the conflict. Moreover, the higher considerations of humanity require a de facto war to be acknowledged as such. If the conflict continues entirely unrecognised as a war, every insurgent is liable to be executed as a rebel or traitor on land, and as a pirate on the sea. A recognition of belligerency is not simply a benefit conferred upon insurgents; it gives the parent State belligerent rights, which it would not otherwise possess, and relieves it from all responsibility for acts done in the revolted territory, or by the insurgent authorities (a). federate States. § 27c. The United States have loudly and continually asserted that the Recognition recognition of the belligerency of the Confederates by Great Britain of the Conwas an unfriendly act; but the right to accord it is not, and cannot be, denied. "A nation," said the President, in his annual message to Congress in 1869, "is its own judge when to accord the rights of belligerency, either to a people struggling to free themselves from a government they believe to be oppressive, or to independent nations at war with each other" (b). The course pursued by the British Government is not only justified by having been followed by all the chief maritime States, but was, under the circumstances, the only proper course. Hostilities commenced in April, 1861; on the 13th of April Fort Sumter had fallen, and on the 19th President Lincoln declared the ports of the seven provinces to be blockaded. No official copy of the proclamation of the blockade was received in England till the 10th of May, and Her Majesty's Proclamation of Neutrality, recognising the Confederates as belligerents, was not issued until the 14th of that month (c). When the intimate relation between the two countries is considered, it seems hardly possible to deny the propriety of this recognition. The rebellion "sprang forth suddenly from the parent brain, a Minerva in the full panoply of war," and the Supreme Court of the United States decided it was a war from the commencement of hostilities (d). The very fact of declaring a blockade was a virtual admission of the existence of a war; and after this, what objection could there be to foreign nations recognising it? (e). § 27d. A very different state of facts must exist before neutrals are justified Recognition of indepenin recognising an insurgent province as independent. "When a sovedence. reign State, from exhaustion, or any other cause, has virtually and substantially abandoned the struggle for supremacy, it has no right to (a) [Wheaton, by Dana, n. 15. Parl. Papers N. America, 1873 (No. 2), p. 75. Parl. Papers N. America, 1876 (No. 3), p. 19. Whiting, War Powers under the U. S. Constitution (43rd ed.), p. 333.] (6) [Annual Message to Congress, 1869. See Parl. Papers N. America, 1872 (No. 2), p. 17.] (e) [See Sir A. Cockburn's Reasons (d) [The Prize Causes, 2 Black. 669.] $27e. Independence of Greece and Belgium. $ 27f. Texas and Hungary. complain if a foreign State treat the independence of its former subjects as de facto established. When, on the other hand, the contest is not absolutely or permanently decided, a recognition of the inchoate independence of the insurgents by a foreign State, is a hostile act towards the sovereign State, which the latter is entitled to resent as a breach of neutrality and friendship" (f). It is to the facts of the case that foreign nations must look. The question with them ought to be, is there a bona fide contest going on? If it has virtually ceased, the recognition of the insurgents is then at their discretion. It was upon this principle that England and the other powers acted, in recognising the independence of the South American Republics. The action of some of the European powers towards Greece in 1827, and Belgium in 1830, was not a simple recognition of independence, and does not come within the preceding rule. In both cases the powers intervened to settle the disputes, and without this assistance the insurgents would not have succeeded. In the case of Greece, the intervention was based on the ground of humanity, and for the suppression of piracy and anarchy. In that of Belgium, the powers, by their own act at the treaty of Vienna, had united that country to Holland; but finding the union incompatible, they intervened to dissolve it. The recognition of the independence of Texas by the United States, although it preceded that of other nations, did not take place until 1837, and all substantial struggle with Mexico was over early in 1836 (g). But in the case of the Hungarian revolt of 1849, the conduct of the United States, in investing an agent in Europe with power to declare the willingness of his government promptly to recognise the independence of Hungary in the event of her ability to maintain it, was unjustifiable towards Austria. The sympathy which the American people undoubtedly felt for the Hungarians should not have been thus expressed officially, more especially as the geographical situation of both countries prevented the United States being in any way concerned in the matter (h). Mr. Dana says that, "as a point of international law, the transaction has little significance;" and he adds that "the episode belongs rather to history, as indicating the policy and feeling of the United States" (i). This might be so if the American Union were an insignificant State; but it can scarcely be denied that if insurgents learn that the government of such a great power as the United States gives them its full sympathy, and is prepared to recognise their independence at the earliest possible moment, this may give the rebellion a very different complexion, and is almost sure to strengthen the hands Annuaire des Deux Mondes, 1837, (f) [Letters of Historicus (Sir W. 38. (g) [Kennet v. Chambers, 14 Howard, (h) [Letters of Historicus, p. 5. President Taylor's Annual Message to Congress, 1849.] (i) [Wheaton, by Dana, n. 18, p. 47.] of the rebels, and make it more difficult for the parent State to maintain its sovereignty (k). The international effects produced by a change in the person of the sovereign, or in the form of government of any State may be considered: I. As to its treaties of alliance and commerce. II. Its public debts. III. Its public domain, and private rights of property. IV. As to wrongs or injuries done to the government or citizens of another State. § 29. I. Treaties are divided by text writers into personal Treaties. and real. The former relate exclusively to the persons of the contracting parties, such as family alliances and treaties guaranteeing the throne to a particular sovereign and his family. They expire, of course, on the death of the king or the extinction of his family. The latter relate solely to the subject-matters of the convention, independently of the persons of the contracting parties. They continue to bind the State, whatever intervening changes may take place in its internal constitution, or in the persons of its rulers. The State continues the same, notwithstanding such change, and consequently the treaty relating to national objects remains in force so long as the nation exists as an independent State. The only exception to this general rule, as to real treaties, is where the convention relates to the form of government itself, and is intended to prevent any such change in the internal constitution of the State (7). The correctness of this distinction between personal and real treaties, laid down by Vattel, has been questioned by more modern public jurists as not being logically deduced from acknowledged principles. Still it must be admitted that certain changes in the internal constitution of one of the contracting States, or in the person of its sovereign, may have the effect of annulling (k) [Recognition of sovereignty. See further Wharton, Dig. §§ 70, 71. The United States are prompt to recognise new republics. Ib.] (1) Vattel, Droit des Gens, liv. ii. ch. 12, §§ 183-197. § 29a. Binding effect of treaties. $ 30. Public debts. pre-existing treaties between their respective governments. The obligation of treaties, by whatever denomination they may be called, is founded, not merely upon the contract itself, but upon those mutual relations between the two States, which may have induced them to enter into certain engagements. Whether the treaty be termed real or personal, it will continue so long as these relations exist. The moment they cease to exist, by means of a change in the social organization of one of the contracting parties, of such a nature and of such importance as would have prevented the other party from entering into the contract had he foreseen this change, the treaty ceases to be obligatory upon him. On the separation of Belgium and Holland, the United States deemed themselves justified in withdrawing from an agreement to accept the King of the Netherlands as umpire on the north-east boundary question. When Texas joined the United States, France and England intimated that she did not thereby cease to be bound by her treaties with them (n); and a like intimation was given by Great Britain to France respecting Tunis, on the French occupation of that country (o). The United States regards its treaties with Algiers as terminated by the French conquest of 1831, its treaties with Hanover as terminated in consequence of incorporation with Prussia in 1866, with Nassau as terminated for the same reason in 1846, and its treaties with the Two Sicilies as terminated by absorption of that kingdom into Italy (p). II. As to public debts-whether due to or from the revolutionized State-a mere change in the form of government or in the person of the ruler, does not affect their obligation. The essential form of the State, that which constitutes it an independent community, remains the same; its accidental form only is changed. The debts being contracted in the name of the State, by its authorised agents, for its public use, the nation continues liable for them, notwithstanding the change in its internal constitution (q). The new government succeeds (n) [Wheaton, by Dana, note 17, p. 48; Lord Aberdeen to Mr. Eliot, 3rd Dec. 1845.] (a) [Parl. Papers, Tunis, Nos. 3 and 7 (1881); see p. 60, infra.] (p) [Wharton, Dig. pp. 63, 64.] (2) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 9, § viii. 1-3. Puffendorf, de Jur. Nat. et Gent. lib. viii. cap. 12, §§ 1, 2, 3. to the fiscal rights, and is bound to fulfil the fiscal obligations of the former government. It becomes entitled to the public domain and other property of the State, and is bound to pay its debts previously contracted (r). $ 30a. clause Payment of debts of terri Thus, tory ceded by Most treaties relating to the transfer of territory contain a providing for the payment of the debts of the territory ceded. when Holland and Belgium were united in 1814, it was provided that treaty. the new Kingdom of the Netherlands should be responsible for the debts of both countries (s). When Schleswig, Holstein, and Lauenburg were ceded by Denmark, in 1864, to Austria and Prussia, it was agreed between the parties that the debts of the Danish monarchy should be divided between Denmark and the ceded provinces, in proportion to the population of the two parts (1). On the acquisition by Italy of the Papal States, in 1864, and of Venice in 1866, she, in each case, took upon herself the debts of those provinces (u). In some cases territory has been transferred free from the general debt of the State it belonged to. This was the case when Saxe-Cobourg ceded Lichtenburg to Prussia in 1834, and when Austria, Sardinia, and some of the other Italian States, rectified their boundaries in 1844 (x). On the cession of Alsace and Lorraine by France, in 1871, Germany refused to take upon herself any share of the French national debt (y). By the treaty of Berlin, 1878, the portions of Turkish territory given to Servia and Montenegro were charged with a share of the Turkish debt. The portions given to Russia were not so charged, being taken as part payment of a war indemnity demanded by Russia from Turkey (z). and private § 31. III. As to the public domain and private rights of pro- Public domain perty. If the revolution be successful, and the internal rights of change in the constitution of the State is finally confirmed property. by the event of the contest, the public domain passes to the new government; but this mutation is not necessarily attended with any alteration whatever in private rights of property. It may, however, be attended by such a change: it is competent for the national authority to work a transmutation, total or partial, of the property belonging to (r) Heffter, Das Europäische Völkerrecht, § 24. Bona non intelliguntur nisi deducto ære alieno. (s) [Art. VI. of the Treaty. See Hertslet, Map of Europe, vol. i. p. 38.] (t) [Annual Reg. 1864, p. 236.] (u) [Hertslet, Map of Europe, pp. 1628, 1721.] (x) [Hertslet, Map of Europe, vol. ii. pp. 948 and 1052.] (y) [Calvo, vol. iii. p. 244.] (z) [Parl. Papers, Turkey (No. 44), 1878, and Turkey (No. 22), 1878.] |