or all of them put together, that we have refrained from taking the steps to which my noble friend (Lord G. Bentinck) would urge [*12 ] *us. England, I trust, will always have the means of obtaining justice for its subjects from any country upon the face of the earth. But this is a question of expediency, and not a question of power; therefore, let no foreign country who has done wrong to British subjects deceive itself by a false impression, either that the British nation or the British Parliament will for ever remain patient acquiescents in the wrong, or that, if called upon to enforce the rights of the people of England, the Government of England will not have ample means at its command to obtain justice for them." (c)

VI. The obligation of the State debtor is, if possible, yet stronger when the debt has been guaranteed by Treaty.(d) For in that case, the foreign may be entitled to a preference over the domestic creditor.

As a general rule, the proposition of Martens seems correct, that the foreigner can only claim to be put on the same footing as the native creditor of the State.

VII. It may indeed happen, as the same author most justly observes, that the debtor State may adopt measures of domestic finances, so fraudulent and iniquitous, so evidently repugnant to the first principles of justice, with so manifest an intention of defeating the claims of its creditors, as to authorize the Government of the creditor in having recourse to measures of retaliation, reprisals, or to open war,-such measures, for instance, as the permanent depreciation of coin or paper money, or the absolute repudiation of debts contracted on the public faith of the country.

The epithet permanent is used, because it could scarcely be denied. that, in case of extraordinary necessity, (e) a nation might adopt temporary measures of finance with regard to its paper money, of which the foreign creditor could not justly complain.

[*13]

*But then he has a right to the observance of two conditions 1. That the real value of the loan be eventually paid. 2. That he be placed during the interim on the same footing as the domestic creditor.

VIII. The French Government, during the last war between England and France, confiscated a debt due from a French to a British subject; subsequently, an indemnity was stipulated for on the part of the French Government. When the matter was brought before the Commissioners appointed to adjust claims of this description, a question of great importance arose, namely, whether the debt was to be calculated according to the value of the currency at the time when the confiscation took place; or, there having been subsequently to the time of this confiscation a great depreciation in the French currency, whether the value should be calculated in the depreciated currency. The Commissioners held that the debt ought to be calculated according to the value at the time of the

(c) Hansard, Parl. Deb. 1847.

(d) E. g. as in the case of Greece. See Convention of 30th April, 1833, art. xii. De M. et De C. t. iv. p. 340.

(e) See also case mentioned by Vattel, 1. ii. c. xii. s. 170.

confiscation. The Privy Council, on appeal, confirmed their decree.(ƒ) Sir William Grant, one of the greatest judges ever known in England, in delivering his judgment, observed, that this case bore no analogy to the case between a debtor and creditor, whatever might be the law(9) in a case, where a depreciation of currency happened between the time when the debt was contracted, and when it was paid; for he said: "There is a wrong act done by the French Government: then they are to undo that wrong act, and to put the party in the same situation as if they had never done it. It is not merely the case of a debtor paying a debt at the day it falls due; but it is the case of a wrongdoer who must undo, and completely undo the wrongful act he has done; and if he received the assignats at the value of 50d., he does not make compensation by returning an assignat which is only worth 20d.:*he must make up the difference between the value of the

[*14] assignat at different periods."(h)

In fact, the creditor is entitled to a restitutio in integrum.

ཀ

IX. It is a clear maxim of International Law that the property of the subject is liable for the debts contracted by the State of which he is a member. This proposition is discussed with learning and excellent sense by Grotius. After saying that "Mero naturæ jure ex facto alieno nemo tenetur nisi qui bonorum successor est;" and citing some remarkable passages from Seneca, "Si quis patriæ meæ pecuniam credat, non dicam me illius debitorem, nec hoc æs alienum profitebor; ad exsolvendum tamen hoc portionem meam dabo; unus e populo non tanquam pro me solvam, sed tanquam pro patria conferam. Singuli debebunt non tanquam proprium, sed tanquam publici partem ;”(i) and after observing that by the Roman Law the debts of the "universitas,” or corporate body, were, on failure of the funds of the universitas, binding upon individuals, "non (quâ) "singuli, sed quâ pars sunt universorum;" and that the whole tenor of the later provisions of that law were adverse to the principle of hypothecating one man's property for another's debts, even for public debts; he adds in admirable language "Hæc quanquam vera sunt, tamen jure gentium voluntario induci potuit, et inductum apparet, ut pro eo quod debet præstare civilis aliqua societas, aut ejus caput, sive per se primo, sive quod alieno debito jus non reddendo se quoque obstrinxerit, pro eo teneantur et obligata sint bona omnia corporalia et incorporalia eorum qui tali societati aut capiti subsunt. Expressit autem hoc quædam necessitas, quod alioqui magna daretur injuriis faciendis licentia, cum bona imperantium sæpe non tam facile possint in manus venire, quam privatorum qui plures sunt. Est igitur hoc inter jura illa quæ Justinianus ait, usu exigente, et humanis necessitatibus a gentibus humanis constituta."

(ƒ) See the authorities on this subject collected. Story on Conflict of Laws, ss. 308-313; et vide post, Comity.

(g) Vide ante, vol. i. chap. viii.

(h) Pilkington v. Commissioners, &c., 2 Knapp's Privy Council Reports, pp.

17-21.

(i) De J. B. et P. 1. iii. c. ii. ss. 1, 2.

*CHAPTER IV.

[*15]

RECOGNITION.

X. CLOSELY connected with the subject of Intervention, discussed at the end of the former volume of this work, is the subject of Recognition, which is a kind of moral intervention by one State in the affairs of another.(a)

Such is the usual meaning of this term of International Jurisprudence; but it may also signify the act of acknowledgment by the State itself, from which the Province claiming its independence has revolted, of the independence of that Province.

Such, for example, were the formal Recognitions by the German Empire, in 1648 and 1654, of the Independence of Switzerland; of Holland by Spain; of Holland in 1649, and of Portugal in 1668; by Great Britain of the United States of America in 1782; by France when, in the Treaty of Paris in 1815, she recognized the independence of the kingdoms which had been seized upon and retained by her since 1790.

This Recognition is, of course, infinitely more material to the recognized State, than any act of the kind by a third power can be. But it is the latter species of Recognition that claims discussion in this place. XI. In modern times, at least, the occasions for the application of this part of International Law can only arise.

*1. When a nation acquires by conquest a new territory, which she claims to have recognized as an integral part of her kingdom. [*16]

2. When a portion of a nation separates itself from the remainder, and claims admission as an independent community into the society of States. The principle affecting such a claim is the same, whether this portion occupy a territory on the same Continent with, and contiguous to the country from which it has revolted, or a distant colony of that country; whether it be the case of Holland and Portugal in the reign of Philip II., of Belgium in our own times, of the North American Colonies in the reign of George III., or of the South American Colonies in that of Ferdinand VII.

3. There is also the case of the Governor of an Independent State assuming a new title, of which he claims the recognition by other States.(b)

(a) Martens, t. i. I. 3, c. 2, s. 82, n. 6. De la Reconnaissance politique. Klüber, s. 23.

Oppenheim, p. 202, kap 8, s. 9, in part very good and clear.

Saalfeld, s. 30, pp. 63, 64.

Wheaton, Elem. 33, 37, 42.

Heffters, ss. 23, 29, 92.

Martens, Nouvelles Causes Célèbres, tom. i. p. 370. Cause Quatrième :-" Différends survenues en 1778, entre la Grande Bretagne et la France, au sujet de la reconnaissance de l'indépendance des Colonies Anglo-Américaines."

Vattel, I. iv. c. v. s. 68.

(b) "It is perfectly true, as has been mentioned, that the term 'recognition' has been much abused; and, unfortunately, that abuse has, perhaps, been supported

*XII. 1. The first instance belongs more properly to the part [*17] of this treatise which relates to the Rights of Belligerents, the

Duties of Neutrals, and the Effects of War.

2. As to the second instance, the Recognition of a revolted Province or Colony by a State, other than that from which it has revolted, is of two kinds, Virtual and Formal.

The mere observance by a Third Power of a strict neutrality in the war between an old and a new State, especially when called upon by the former for intervention and aid, has some beneficial effect with respect to the nation which is struggling for independence. It allows impartially to both an equal rank and character as belligerents. The question of the right of Third Powers to assist either party has been already considered.(k) XIII. If the contest be protracted, and there be any appearance of equality between the contending forces, the subsequent conduct of Third Powers, intending to remain neutral, cannot be blamed, if they proceed to a virtual Recognition of the revolted State; that is to say, if they recognise its commercial flag, and if they sanction the appointment of consuls to the ports of the new State. So far, there is a Recognition of its de facto existence, fully justified, perhaps indeed imperatively enjoined, by the duties of the Third Power towards its own subjects, and in no way inconsistent, according to the practice of nations, with the continued observance of neutrality between the contending parties. (7)

It was not, however, till after the struggle between Spain and her South American colonies had lasted for many, about twelve, years, that Great Britain accorded this virtual Recognition to the latter-righteously, perhaps even too scrupulously, observing the rule, of not injuring, even [ *18] of amity. indirectly, *the interests of a country with which she was on terms

XIV. There is no proposition of law upon which there exists a more

sense.

by some authority: it has clearly two senses, in which it is to be differently understood. If the colonies say to the mother country, 'We assert our independence,' and the mother country answers, 'I admit it,' that is recognition in one If the colonies say to another State, 'We are independent,' and that other State replies, 'I allow that you are so,' that is recognition in another sense of the term. That other State simply acknowledges the fact, or rather its opinion of the fact; but she confers nothing, unless, under particular circumstances, she may be considered as conferring a favour. Therefore, it is one question, whether the recognition of the independence of the colonies shall take place, Spain being a party to such recognition; and another question, whether Spain, withholding what no power on earth can necessarily extort, by fire, sword, or conquest, if she maintain silence without a positive refusal, other countries should acknowledge that independence. I am sure that my honourable and learned friend will agree with me in thinking, that his exposition of the different senses of the word 'recognition' is the clearest argument in favour of the course we originally took, namely, that of wishing that the recognition in the minor sense should carry with it recognition by the mother country in the major sense. The recognition by a neutral power alone cannot, in the very nature of things, carry with it the same degree of authority as if it were accompanied by the recognition by the mother country also."Speeches of Mr. Canning, vol. v. pp. 299, 300.

(k) Vide ante, vol. i. p. 442.

Mr. Canning's Speech on the Independence of South America, vol. v. p. 295. (1) See Petition of London Merchants, presented to the House of Commons by Sir J. Mackintosh.

Canning's Speeches, vol. v. p. 293.

universal agreement of all jurists than upon this, viz., that this virtual and de facto Recognition of a new State gives no just cause of offence to the old. State,(m) inasmuch as it decides nothing concerning the asserted rights of the latter. For, if they be eventually sustained and made triumphant, they cannot be questioned by the Third Power, which pending the conflict, has virtually recognised the revolted State.

XV. And here it is desirable to explain the conduct of Great Britain at a particular period, which at first sight, and to superficial readers of history, may appear inconsistent with the law just laid down.

Pending the conflict between Great Britain and her North American colonies, she complained more than once of the unneutral behaviour of France; and the declaration of the Marquis de Noailles, in 1778, to the cabinet of St. James, that France had signed "un traité d'amitié et de commerce" with "Les Etats-unis de l'Amérique septentrionale, qui sont en pleine possession de l'indépendence prononcée par leur acte du 4 Juillet, 1776,"(n) was immediately followed by a declaration of war on the part of Great Britain against France; and, as far as that country was concerned, never was a war declared upon juster grounds.

It was declared, not on account of the mere establishment of diplomatic relations between France and the North American colonies, but, on account of the long tissue of dark and treacherous machinations which France had begun to weave, under the veil of the strongest professions of amity and goodwill, against the peace, honour, and interest of Great Britain, on the first appearance of discontent in America in 1765, and *which were brought to light by the act which has been men

tioned; the fact rests upon the unquestionable authority of the [*19] memoires, since published, of the agents employed by the French Government to excite the rebellion in North America.(o)

XVI. To the Virtual must succeed, in course of time, a Formal Recognition, evidenced by the sending of ambassadors, and the entering into treaties on the part of Foreign Powers, with the new State. (p)

Speaking generally, two facts should occur before this grave step be taken, whereby the Neutral Power becomes the ally of one of the hitherto Belligerent parties.

1. The practical cessation of hostilities on the part of the old State,

(m) President Monroe's Message, 2nd Dec. 1823; and see Speeches of Canning and Mackintosh, referred to above.

(n) Martens, Nouvelles Causes Célèbres, t. i. pp. 466-7-Cause Quatrième.

"To those who say there is something mean and paltry in negotiating a treaty as the mode of recognition, and who would, if they were ministers, rather resign than so disgrace themselves, I will only observe, that this has been always the mode. The Minister of the United States was not admitted to the court of France till after the signature of a treaty. That was the mode of recognition in that case; but there were other circumstances attending the act, widely different from our recognition of the late Spanish colonies. France not only recognised 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 with the United States to enable them to achieve their independence."-Mr. Canning's Speech on the Address on the King's Speech on the opening of the Session, Feb. 15, 1822, Canning's Speeches, vol. v. p. 322.

(p) Sir J. Mackintosh's Speech, vol. iii. p. 448 of his Miscellaneous Works.