A state's ob

destroyed by

government.

state may still preserve its attributes and functions. No act of its own can annihilate an obligation to another state; ligations not and its rights still continue, unless its former constia change of tution of government was the condition on which the obligations of other states towards it were founded. The general rule then, as all admit, is, that rights and obligations survive a change of government or a revolution. So when a nation separates into parts, or unites with another state to form a new whole, it cannot, even by such a process, which destroys or modifies its existence, divest itself of its obligations. Thus debts due to foreigners outlast all such mutations, and not to provide for their payment would be a violation of right. When at the formation of our Federal Constitution the States' debts were assumed, and when at the separation of Norway from Denmark the old debt of the united countries was equitably divided, these were acts of simple justice and good faith. It may happen, however, that a union or division of states renders a past obligation of treaty impossible, or inconsistent with present relations. Thus, suppose that Scotland before its union with England had engaged to furnish France with a contingent of troops. This engagement could hardly be thought binding after the union; much less would one be binding, which contemplated an alliance against the very country with which a union now subsisted. It may be said, indeed, that the prior engagement forbade the forming of a new engagement inconsistent with it. This is, indeed, a rule of right, but not a rule which is valid against important state necessity. There is another extreme case, again, where a change of government may dissolve prior obligations. It is where a despotical or usurping government has contracted debts or made treaties against a nation attempting to recover its liberties. The government is de facto in possession of authority, and thus its acts are lawful; nevertheless obligations entered into to subjugate the people must be regarded in this extreme case as pertaining to the government alone, and not as resting on the people. (Comp. § 153.)1

1 There is a distinction between the sovereignty of a state and that of a prince.

§ 39.

governments

eye

al law.

A state may sustain relations to other states, and perform its offices generally under any form of government. All forms of The law of nations preserves an entire indifference fegitimate in to constitutions, so long as they do not prevent fulfill-internation ment of obligations. Every state is in its eye legitimate. And in matter of fact the countries which profess to be bound by the Christian or European law of nations, differ exceedingly from one another in their constitutions, which contain specimens of absolute and constitutional hereditary monarchy, of confederated democracies, and until 1870 of an elective ecclesiastical principate.

§ 40.

Internation

al law knows ments de

only govern

facto.

Hence it follows that if a state has altered its form of government, or by some revolution, peaceful or violent, has suffered a disruption, or has become united with another, all these things are beyond the province of international law, whose only inquiry is, whether a cetain community or organization is in matter of fact a separate independent existence, performing the functions of a state, and able to take upon itself state responsibilities. The question of a state's right to exist is an internal one, to be decided by those within its borders who belong to its organization.1 To bring the question before external powers, not only destroys sovereignty, but must either produce perpetual war, or bring on the despotism of some one strong nation or strong confederacy of nations, requiring all others to conform their constitutions to the will of these tyrants. Moreover, it is a question

The latter is only representative, -a mode of exercising the power of the former. If now the prince is only in form, and not really, the representative of the state, his acts in extreme cases can be repudiated.

1 Bluntschli (Mod. Völckerr., § 19) makes the following neat statement. The questions whether, why, and in what form a new state has come into existence belong to state or political right. The question whether and in what capacity a newly formed state may receive admission into the community of states is essentially an international one.

outside of the law of nations, which presupposes the fact that nations exist and have rights, and therefore cannot first inquire into their right to exist. On the other hand, the fact of the existence of a state is in general an open one, easy to be judged of, one which involves no decision in regard to the advantages of one form of government over another, and the only fact which nations need to know, in order that they may enter into and fulfill reciprocal obligations.

With these principles the practice of nations on the whole, and in the long run, agrees. All in the end acknowledge the government de facto. Of course, nations which dread revolution will be more slow to allow the title of a revolutionary government, or of one where a family of princes of the same blood, or who have been long allies, are driven from the throne, but they must submit at last to the inexorable facts of divine Providence and history. And if this rule could be overthrown, if a nation or set of nations should act on the plan of withholding their sanction from new nations with certain constitutions, such a plan would justify others who thought differently in refusing to regard the former any longer as legitimate

states.

All history is full of examples of such recognitions. Holland and Switzerland, long after their independence was acknowledged in the diplomacy of most European states, were formally admitted into the brotherhood of nations at the era of the peace of Westphalia. The United States, the Spanish states of South America, the two French empires, the kingdom of Greece, all arose from revolutions, and have been acknowledged to possess the full functions of states. Such, too, has been the case in regard to states which have changed the succession, as England in 1688, Sweden in 1818, and also where a disruption has taken place, as that between Holland and Belgium in 1830; nay, such iniquities as the partitions of Poland have become facts of history, into which the law of nations claims no right to look.

It is almost needless to say that this rule cannot have its

application, as long as there is evident doubt whether a government is a fact. If the question is still one of armed strife, as between a colony and a mother country, or between a state and a revolted portion of it, to take the part of the colony or of the revolted territory by recognition is an injury and may be a ground of war; but every nation must decide for itself whether an independent state be really established, and needs not to wait until the party opposing the revolutionary effort has accepted the new order of things. It is a safe rule in contests involving the violent separation of a state into parts, that when the mother country, in the case of a colony, or the leading portion of a state, in the case of disruption, gives up active efforts to restore the old order of things by war, other states may regard the revolution as perfected, and a new state as having come into the world.

§ 41.

The rule laid down by Mr. Harcourt, in the "Letters of Historicus" (1-35), is substantially the one given in the text, and is shown by him to have guided the action of the British government. It is the only rule consistent with justice, for it is based on the de facto independence of a newly organized community which the nation or state, to which it formerly belonged, has ceased to attempt to subjugate. Policy may delay the time of recognition after, perhaps long after the de facto independence of such a community has begun, but cannot act as if that were a fact which is not.

One or two passages from a speech of Lord Lansdowne, quoted in these letters, are instructive: "Your lordships are now called upon to determine whether you will advise the Crown to recognize them [the Spanish South American States] in the form of independent states — a question which, be it recollected, involves a twofold consideration: first, whether you possess the right to make that acknowledgment, and, secondly, whether . . . . the expediency of exercising that right without delay is equally clear." On the first point he says: "I know of no principle or mode by which we can

...

ascertain whether we possess that right but by considering, in the first instance, whether those states which form the object of our present consideration are de facto independent; and, secondly, if they are de facto independent, whether there be any prospect of the old government of Spain ever being enabled to recover its command of them so as to possess the advantages she formerly did from them; and thirdly whether they have proved themselves disposed and able to maintain those relations of amity and commerce which ought to exist between independent and friendly nations." If a criticism were made on these extracts, it would naturally touch the second position. Whether an old government, in any case, would ever be enabled to recover a revolted province or colony now independent, is more than mortals can tell. This goes beyond the regions of fact. It would be safe to say, Has an old government given up de facto the struggle to subdue its colony? The third point, too, ought to be modified, if not omitted entirely, as touching the expediency of the recognition.

When Louis XVI. recognized the United States, it was followed by war, and for this the French were prepared.

As Mr. Harcourt remarks, an intervention creating a state, such as those in the cases of Belgium, 1830, and Greece, 1827, is a transaction of another nature, beginning in armed force -if resistance is offered-and involving recognition, but causing the fact of independence by the prior action of the third party. It is, in fact, a hostile measure from the beginning.

etc., in re

§ 42.

No state is authorized to render assistance to provinces or Assistance colonies which are in revolt against the established to provinces, government. For if the existence and sovereignty volt. of a state is once acknowledged, nothing can be done to impair them; and if the right of interference in favor of liberty, for instance-be once admitted, the door is open for taking a part in every quarrel.

On the other hand, there is nothing in the law of nations