66 ance to utter destruction of the doctrine that forbids any inter- Assist ference by one state in the internal affairs of another. revolted Indeed," as General Halleck says, "even supposing States. the two parties from the very commencement of the civil war or revolution are to be treated as independent states, it by no means follows that a foreign power may render assistance to the one whose cause it may deem to be just. This would be constituting such foreign power a judge of the justice of the war, whereas if both parties are to be considered as independent states the war is to be deemed in International Law as just on both sides. Moreover, would the justice or injustice of the war be in itself a sufficient reason for the interference of a foreign power? Certainly not."] But the right of interposition in this class of cases must depend upon special circumstances, cannot be precisely limited, and is of the utmost delicacy in its application. It must be submitted to the guidance of eminent discretion and controlled by principles of justice and sound policy. It would clearly be a violation of every principle of law and of morality to invite subjects to revolt who were under actual obedience, however just their complaints, or to endeavour to produce discontents, violence, and rebellion in neighbouring states; and under colour of a generous assistance to consummate projects of ambition and dominion. The most unexceptionable precedents are those in which the interference did not take place until the new states had actually been established and sufficient means and spirit had been displayed to excite a confidence in their stability. The assistance that England gave the United Netherlands when they were struggling against Spain, and the assistance that France gave to America during the war of revolution, [are examples of this kind of interposition, differing widely from each other, and for their wisdom and policy depending as much upon the circumstances of each case as upon the position of the interposing parties. In estimating the propriety of the conduct of Elizabeth, we must keep three important facts in mind: first, the peculiar dangers which surrounded her and threatened the integrity of the country she governed; secondly, the breach between the Catholic and the Protestant forms of religion, rendered more deadly by the recent massacre of 1 Halleck's International Law, Chap. 11. § 20. Assist ance to revolted States. St Bartholomew; and thirdly, the undisguised hostility to England of that power by which the united Netherlands was oppressed. Actual war it is true had not broken out at this time between England and Spain, but the relations between the two countries had long been of such an uncertain nature, and the hatred of the Catholic Powers of Europe was so well known and so intense, that no one could tell when the blow might be struck, or with what combinations England might be threatened; hence it was necessary as it was politic to support the cause of those whose interests were so closely connected with her own, and whose strength might be so serviceable to her; and though the league concluded with the States provided merely for an armed assistance, and that assistance wore the appearance of help from a neutral to an insurgent province, yet was it in reality a treaty of alliance between two Protestant powers, compelled by the most imminent danger to unite in a common resistance to an overwhelming foe. But the assistance rendered by France to America' is an event of a different complexion, and though the struggle for freedom which was then being waged between the American colonies and the mother-country was one that America may justly be proud of, and that England can look back upon without any other regret than that of the injustice that gave rise to it, yet the glory surrounding it must not blind the eyes of even the most loyal American to the fact, that at the time when France was at peace with this country she went beyond simple recognition of the American states, and signed a secret treaty of alliance, offensive and defensive, by which mutual assistance was stipulated for, -a step which when brought to light was followed by the recall of the British Ambassador.] 1 Martens' Nouvelles Causes Célèbres, T. 1. Cause quate. p. 370. 2 See Debate on Foreign Enlistment Act, 1819, Parliamentary Debates, 1819, Vol. XL. p. 1256; and Wheaton, Elements of International Law (edition 1863, by Lawrence), p. 47. France not only (said Mr Canning) recognized the United States before her territory was free and without giving the mother-country any offer of precedency, but though in amity with us at the moment, mixed up with the act of recognition a treaty of alliance to enable them to achieve their independence. Speech on the Address on the King's Speech, Feb. 15, 1822, 5th Vol. of his Speeches, p. 322. tion. [And this brings us to the subject of Recognition, Recogni which is of itself too important and lies too close to the domain of Intervention to be dismissed without a short examination of the principles on which it appears to rest. According to Sir James Mackintosh', than whom no one has a better claim to speak with authority on this as on many other branches of International Law, there are two kinds of Recognition. One where the independence of a country is explicitly acknowledged by a state which formerly exercised sovereignty over it, the other where the independence of a revolted state is acknowledged by third parties. The first of these requires no explanation and presents no difficulty, for whilst on the one hand it is simply a renunciation of sovereignty, a surrender of the power, or the claim to govern, on the part of what to neutral states had hitherto been the sovereign state; on the other, it is an introduction to the great society of nations of a new state entitled to the same rights, and bound by the same obligations as each one of themselves, and though separated from, yet now on an equality with the state of which it once formed a dependent portion3. tion of a revolted The latter, however, may present some difficulty from Recogni the fact of its being a recognition established not by the original sovereign state but by neutrals at the expense it State. may be of that state, and at the risk of incurring its displeasure. Hence it is well to ascertain why its demand and concession are important, when that concession may be made, and what is the effect of it when made. Its importance does not need much in the way of statement. Arising as it does out of a conflict between two parts of 1 Speech on Spanish-American States, 15 June, 1824, Mackintosh's Works, Vol. 1. p. 440. 2 Canning's Speech on the Independence of S. America, June 15, 1824, Speeches, Vol. v. p. 299. 3 Heffter, Droit des Gens, § 23. The following are some of the most memorable instances of this kind of Recognition. That of Switzerland by the Germanic Empire at the Peace of Westphalia (Art. vi. of the Treaty of Munster). Comte Garden, Hist. des Traités de Paix, Tom. 1. p. 249. Of Holland in 1609 by Spain at the Peace of Antwerp; and again by Europe generally at the Peace of Westphalia, by the Treaty of Munster, 1648. Comte Garden, in loc. cit. Of Portugal by Spain in the Treaty of Lisbon, 1662. Comte Garden, Tom. 11. p. 60; for more recent ones see Phillimore's International Law, Vol. 11, ch. IV. pp. 21-24; and De Martens' Droit des Gens, § 66. Recognition of a revolted State. what was once a united body, the one struggling to throw off, the other to retain, obedience, it frequently happens that the contest is of the fiercest and bitterest nature, prolonged to a period that severely tries the patience and forbearance of those who are watching it, and that consequently the conduct of neutrals is observed with the most jealous eyes, and subjected to the most partial judgment. Therefore when the time comes for neutrals to listen to the demand for recognition on the part of the insurgent body claiming its right to be received as an independent sovereign power, it behoves them to consider carefully the claim, and to decide upon it not only as a matter of policy, but as a question of law. For, in the first place, recognition is a direct loss to one side, a direct gain to the other. Next, as Lord Lansdowne has shewn', the question of recognition involves a matter of right, and not one of policy merely; and lastly, the legal as well as the political consequences, the international as well as the national gains, are as important as they are extensive. The question of recognition, therefore, being so important to all parties, to the parent state, to its revolted members and to foreign powers, it becomes a very grave matter to consider what is the proper time for conceding it, for by whom it is to be conceded is free from any 1 Parliamentary Debates, New Series, Vol. x. p. 983. See also the letter of Historicus on Recognition, Letter 11. p. 25, whose letters on this subject and on that of Intervention cannot be too strongly recommended to the student of International Law. 2 The following cases, some of which are noticed briefly in the 2nd Vol. of Phillimore's International Law, pp. 25 and 26, will illustrate the importance of Recognition in a purely legal point of view: City of Berne v. Bank of England, 9 Vesey, 347. Dolder v. Bank of England, 10 Vesey, 352, and 11 Vesey, 283. Taylor v. Barclay, 2 Simon, 213. See also Grisarri v. Clement, 2 Bingham, 432. Jones v. Garcia del Rio, 1 Turner and Rupel, 297. And De Wutz v. Hendricks, 2 Bingham, 314. In the two following cases the position of the Sovereign Power and its duties at the termination of an unsuccessful revolt in respect of the obligations contracted by, and the public property alleged to belong to the usurping de facto government are discussed and adjudicated upon : United States of America v. Prioleau, 35 LJ, Ch. 7, and United States of America v. Mc Rae, 38 LJ, Ch. 406, and LR=8 Eq. 69. tion of a doubt whatever', viz. "by the sovereign legislative or Recogniexecutive power of foreign states only, not by any sub- revolted ordinate authority or by the private judgment of their State. individual subjects; whilst equally free from doubt are the propositions that recognition may be refused while the contest is being carried on between the two parties and the issue is doubtful; that such refusal is entirely conformable to law and consistent with good faith3; and that until such recognition of independence takes place courts of justice and private individuals are bound to consider the ancient state of things as remaining unaltered*. of the 1820. The question of time, then, is all-important, and here, Revolt fortunately, we have an excellent precedent for our Spanish guidance. Some fifty years ago a portion of the ancient Colonies, colonial dependencies of Spain threw off their allegiance to the mother-country, and strove, ultimately with success, to establish themselves as sovereign states. In the course of a strife that lasted for more than fifteen years the commercial interests of this country and of the United States of America were materially affected. Some fruitless attempts were made to induce the British Government formally to recognize the insurgent powers as independent states, and at length a petition was presented to the House of Commons by Sir James Mackintosh, on the 15th June, 1824, praying for the recognition of the Spanish Colonies, and submitting that for the following reasons they had established de facto a separate political existence:-1st, Because no vestige of Spanish dominion in Columbia, Buenos Ayres and Chili was left; 2nd, Because each State enjoyed its own separate and independent Government; and 3rd, Because the revolution had been in progress fifteen years. In the masterly speech with which he supported the petition, Sir James insisted most strongly on the fact that all substantial struggle for sovereignty had ceased on the part of Spain, whilst it 1 Wheaton, Vol. 1. Part 1. Chap. II. p. 47. Phillimore's International Law, Vol. 1. p. 25. 14 Howard's Reports (American), p. 38. 7 Howard, p. 1. 3 Wheaton's Reports (American), p. 324; and see also The Manilla, 1 Edwards, Appendix D. 3 Phillimore, Vol. 1. p. 25. Wheaton's Elements of International Law, Ed. 1863, Vol. I. Part 1. Chap. 11. note 19. 4 Halleck, International Law, Chap. III. § 22. Wheaton, Elements, Part 1. Chap. 2, § 10. |