United Hungary, and Hungary there seemed to be a prospect that the latter Recognimight become an independent nation. However faint that tion. prospect I thought it my duty, in accordance with the States and general sentiments of the American people, who deeply 1849. sympathized with the Magyar patriots, to stand prepared, upon the contingency of the establishment by her of a permanent government, to be the first to welcome independent Hungary into the family of nations. For this purpose, I invested an agent then in Europe with power to declare our willingness promptly to recognize her independence in the event of her ability to maintain it'." Is it necessary to criticize a document in which two faults at all events are visible, the delegacy of sovereign powers to an agent, and the victory of sympathy and sentiment over reason and law? What would have been thought of an English minister who should have directed an agent in the Confederate States, to declare the willingness of England promptly to recognize their independence in the event of their ability to maintain it? Such are the tests which two great nations have tacitly agreed to adopt ere they proceed to recognize the independence of a revolted colony or member of a state, and such the history of the events in which those tests have been applied; it is only necessary to add a few words upon the mode in which that recognition may take place, and upon a topic which is not out of place here, viz. the recognition of belligerent rights in a revolted colony or portion of a state. Sir Robert Phillimore says there are two modes of recognition, the virtual and the formal, the former preceding the latter, and taking place through the acknowledgment of the revolted state's commercial flag, or the appointment of consuls to its ports. This he asserts gives no just cause of offence to the old state, and is in no way inconsistent with the continued observance of neutrality between the contending parties. The latter, the formal, is evidenced by the sending of ambassadors, and the entering into treaties. with the new state; but with this distinction, and with this view, it is impossible to agree. If the time has come for recognition upon the tests above specified, and if that recognition is to be one of independence, of the 1 President Taylor's First Annual Message, Dec. 1849. Statesman's Manual, Vol. 1. p. 1835. Mode in which tion takes place. Recogni- establishment in fact of a new state, it surely cannot tion matter in what form the recognition is made, whether generally. by entering into treaties of commerce, as in the case of England with the Spanish colonies and the United States with Texas, or by an absolute declaration of independence, as in the case of Greece, or by sending ambassadors and consuls; nor, on the other hand, can it be said that the recognizing a commercial flag, or the sending consuls to a country still in revolt, and whose independence is not achieved, is either consistent with the duties of neutrality or void of offence to the old state; for to grant recognition in any way, virtual or formal, while the issue is at all doubtful or the contest not wholly abandoned, is as decidedly an offence against International Law as to refuse it under such circumstances is no offence at all. Recognition of Bellige rent rights. What then is the duty of neutral nations in the event of a war between two portions of a state? Are they justified in putting both parties on an equality and conceding belligerent rights to one and the other, or are they bound to treat the contest as a rebellion and the revolted province as rebels? Most certainly they are justified in putting them on an equality, for the recog nition of belligerent rights, says Mr Lawrence', in a colony or a portion of a state in revolt from or in opposition to the metropolis, is not to be confounded with the acknowledgment of the independence of such province or colony. It has been the constant practice of European nations and of the United States to "look upon belligerency as a fact rather than a principle," holding with Mr Canning, "that a certain degree of force and consistency acquired by a mass of population engaged in war entitled that population to be treated as belligerent." Instances too are numerous from the time when the North American colonies threw off the yoke of England down to the period when at an early stage of hostilities between the United States and the Confederate States, it was resolved by the Governments of England and France to treat the Southern Confederacy in accordance with 1 Wheaton's Elements, Vol. 1. ed. 1863, p. 40, n. 16, by Mr W. B. Lawrence. 2 Mr Secretary Canning in answer to a remonstrance of the Porte, cited by Lord John Russell in the House of Commons, 6 May, 1861, Hansard, 3rd Series, CLXII. p. 1565. tion of rights. acknowledged principles as a belligerent'. It need hardly Recognibe said that the decision, whether it is right and proper Belligethus to accord the privilege of belligerency, is one that rent rests with the government of the neutral country only; and that until such government concedes the fact of belligerent rights to the revolted state, the courts of law cannot recognize its acts or flag'.] not af fected by change of ment. govern Nations are at liberty to use their own resources in Treaties such manner, and to apply them to such public purposes, as they may deem best, provided they do not violate the perfect rights of other nations, nor endanger their safety, nor infringe the indispensable duties of humanity. They may contract alliances with particular nations, and grant or withhold particular privileges, in their discretion. By positive engagements of this kind, a new class of rights and duties is created, which forms the conventional law of nations, and constitutes the most diffusive, and, generally, the most important branch of public jurisprudence. And it is well to be understood, even at periods when alterations in the constitutions of governments, and revolutions in states, are taking place, that it is a clear position of the law of nations, that treaties are not affected, nor positive obligations of any kind with other powers, or with creditors, weakened, by any such mutations3. A state neither loses any of its rights, nor is discharged from any of its duties, by a change in the form of its civil government. The body-politic is still the same, though it may have a different organ of communication. So, if a state should be divided in respect to territory, its rights and obligations are not impaired, and if they have not been apportioned by special agreement, those rights are to be enjoyed, and those obligations fulfilled, by all the parts in common...[Where therefore a change has taken place in the internal form of the government or in the person of the ruler, as far as its foreign relations are concerned the state is unchanged, all its treaties remain in force, its public debts in full existence, its public domain and property pass into the hands of the new 1 Hansard, Vol. CLXII. p. 1566. Annual Register, 1861, p. 114. Wheaton, Vol. 1. p. 43, note by Mr W. B. Lawrence. p. 193. Nueva Anna, and Liebre. 6 Wheaton's Reports (American), 3 Affairs of Belgium, 19th Protocol, British and Foreign State Papers, 1830-31, Vol. xviii. p. 779. See Bluntschli, 1. iii. § 123. Treaties not affected by change of government. tion over adjoining seas. government, and the responsibility of that new government for wrongs inflicted upon the subjects or government of other states exists as fully as that of the old one. Again, where a state has undergone a change by the loss of a part of its territory and subjects, whether through foreign conquest or internal revolt, its identity is not on that account altered, nor are its rights and duties affected, and therefore its claims and debts, its property rights, and its treaty obligations, exist as fully as they did before. But in the event of a state being divided into two or more independent sovereignties, the obligations which had accrued to the whole before the division are rateably binding on the different parts; for, as Story says, “the division of an empire creates no forfeiture of previously vested rights of property." And so e contrario where several separate states are incorporated into one new sovereignty the rights and obligations that belonged to each before the union are binding upon the new state; but, as General Halleck points out, of course the rule must be modified to suit the nature of the union formed and the characters of the act of incorporation in each particular case1.] Jurisdic- The extent of jurisdiction over the adjoining seas, is often a question of difficulty and of dubious right. As far as a nation can conveniently occupy, and that occupancy is acquired by prior possession or treaty, the jurisdiction is exclusive. Navigable rivers which flow through 1 Grotius, de Jure B. et P. 1. II. c. 9. §§ 8-10. Vattel, Bk. п. ch. 12, §§ 183-197. Bynk. Quæst. Jur. Pub. 1. 1. ch. 10. Rutherforth, Book II. ch. 10, § 15. Heffter, Droit International, S$ 24 and 25. Merlin, Répertoire, sub verbo, Souveraineté.' Phillimore, on International Law, Vol. 1. §§ 126 and 137. Wildman, on International Law, Vol. 1. p. 68. Halleck, on International Law, ch. 111. §§ 25-28. Wheaton's Elements, ed. 1863, Vol. 1. p. 52, note 20, "Further Correspondence between Great Britain and Texas," and p. 53, n. 21, for the case of a claim made by a British subject holding Texan bonds upon the United States. See also in the Annual Register, Vol. LXXXVII. p. 305, that part of the President's message, Dec. 3rd, 1844, relating to the obligations incurred by the United States towards the creditors of Texas. Treaty of Peace at Zurich, Nov. 10th, 1859, Arts. 9-17. Samwer, Recueil de Traités, T. III. pie 11. pp. 519-522 and 527. The following cases are also deserving of notice. Calvin's case, 7 Coke, p. 27. Kelly v. Harrison. 9 Johnstone's Cases in the Supreme Court, p. 32 (American). Jackson v. Lunn, 3 Johnson, ib. p. 121, and Terrett v. Taylor, 9 Cranch (American), p. 50. over ad open sea. versy be tween Great Britain United a territory, from their sources to their mouths, including Jurisdic the bays or estuaries formed by their junction with the joining sea-coast adjoining such territory, and the navigable waters seas. included in bays, and between headlands and arms of the sea, belong to the sovereign of the adjoining territory, as being necessary to the safety of the nation, and to the undisturbed use of the neighbouring shores'. The open And the sea is not capable of being possessed as private property. The free use of the ocean for navigation and fishing is common to all mankind, and the public jurists generally and explicitly deny that the main ocean can ever be appropriated. The subjects of all nations meet there, in time of peace, on a footing of entire equality and independence. [In this spirit the two governments of the ControUnited States and Great Britain resisted the attempt of Russia, in 1824, to establish an exclusive jurisdiction over the north-west coast of America from Behring's Straits and to the 51st degree of north latitude, and to make the Northern Pacific ocean a mare clausum. It is unnecessary to enter into the controversies or to describe at length the terms in which the settlement of them was embodied; ing the result was a successful vindication of the freedom of Pacific the waters of the Pacific ocean and of the interior seas and creeks thereof for navigation, fishery, and trade purposes, in the shape of two conventions, one between the United States and Russia, dated April, 1824, for the period of ten years from that date, and not renewed; the other between Great Britain and Russia, dated February, 1825, for the same period of time, which eighteen years after its signature was re-established by the Treaty of Commerce of June 11, 1843, between these two countries.] No nation has any right of jurisdiction at sea, except it be over the persons of its own subjects, in its own vessels; and so far territorial jurisdiction may be considered as preserved, for the vessels of a nation are, in many respects, considered as portions of its territory, 1 Grotius, 1. II. c. 2, § 12, -c. 3, § 7. Puffendorf, 1. Iv. c. 5, $$3 and 8. Vattel, Book 1. ch. 22, § 266. Marten's Précis du D. G. L. I. ch. 1, § 39. Heffter, §§ 66, 67. 2 They will be found in Wheaton's Elements, Vol. 1. pp. 208314, ed. 1863, by W. B. Lawrence, where the text of the two conventions is fully set out. See also Ann. Reg., Vol. LXIV. pp. 576 -584, and British and Foreign State Papers, 1824, 25, Vol. XII. pp. 38 and 595. with respect Russia Northern ocean, 1824. Jurisdic tion in the open sea. |