66

"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."

IXA. The English courts have decided that bonds payable to bearer, issued by the Government of a State, only create a debt in the nature of a debt of honour which cannot be enforced by any foreign tribunal, nor by the tribunal of the borrowing State itself, unless with the consent of its Government (j).

IXB. The principle has long been recognised that debts attaching to countries are to be respected, and that on alienation, whether voluntarily or compulsorily, such debts must be adopted by the successive owners. In cases of severance the debts have usually been apportioned (k). Of this course the following examples, amongst many others, may be cited:

By Article 8 of the Treaty of Lunéville, in 1801, it was determined that the new possessors of ceded countries (including the territories on the left bank of the Rhine) should be charged with the debts hypothecated thereon.

On the separation of Belgium from Holland a division was made of the public debt of the kingdom of the Netherlands, and a part of it was, by Article 13 of the Treaty of 1839, transferred from the debit of the great book of Amsterdam, or from the debit of the general treasury of the King of the Netherlands, to the debit on the great book of Belgium.

On the separation of the Ionian Isles from Great Britain, Greece undertook the public debt and other engagements attached thereto (Treaty of March 1864).

On the cession of Lombardy to Italy, the latter under

(j) Crouch v. Crédit Foncier of England, Law Reports, 8 Q.B. p. 374, A.D. 1873; Twycross v. Dreyfus, Law Reports, 5 Ch. D. p. 605, a.d. 1877, (k See vol. i. pp. 211, 212.

took the charge of portions of the Monte Lombardo-Veneto debt and of the national loan of 1854 (Treaty of Zürich, November 10, 1859, Article 7, &c.; Convention of September 9, 1860).

On the annexation of Savoy and Nice to France, the latter became charged with a portion of the Sardinian public debt (Treaty of March 24, 1860, Article 4, and Convention of August 23, 1860, Article 1).

On the severance of the Duchies of Schleswig-Holstein and Lauenburg from Denmark, the public debt of the latter was apportioned, and part of it was charged on the Duchies, and was guaranteed by Austria and Prussia (Treaty of October 30, 1864, Articles 8-11) (7).

To these instances may be added the arrangements that took place on the cession of Alsace-Lorraine to Germany in 1871, and still more recently on the cession by Turkey of portions of her territory to Montenegro and Servia (m).

(1) Hertslet's Map of Europe by Treaty, vols. ii. and iii. pp. 989, 1594, 1383, 1453, 1630.

(m) Vide ante, vol. i. pp. 124, 129.

CHAPTER IV.

RECOGNITION.

X. Out of what elements the Constitution of a State shall be composed, under what form of Government it shall exist, are questions of Public Law (a), with which, so long as the Constitution and Government do not threaten the liberties of other States (b), International Law has no concern. But when a new State springs into being, and demands to be admitted into the great commonwealth of States, International Law requires that her political status be so far considered by other States, as to satisfy them that she is capable of discharging international obligations. The Recognition of the new by the old States signifies their conviction that she possesses such capacity. This subject of Recognition is closely connected with that of Intervention discussed at the end of the last volume, and is a kind of moral intervention by one State in the affairs of another (c).

(a) Vol. i. p. 218.

(b) Ibid. p. 560.

(c) Martens, t. i. l. 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.

Heffter, ss. 23, 29, 92.

Martens, Nouvelles Causes célèbres, tom. i. P. 370.

Cause quatrième :

"Différends survenus en 1778, entre la Grande-Bretagne et la France,

au sujet de la reconnaissance de l'indépendance des Colonies angloaméricaines."

Vattel, 1. iv. c. v. s. 68.

Bluntschli, Le Droit international codifié (1870), 1. xi. 2. Formation et Reconnaissance des Etats.

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 in 1649; and of Portugal by Spain in 1668; by Great Britain of the United States of America in 1782; by France when, in the Treaty of Paris in 1815, she recognised 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 recognised 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 recognised as an integral part of her kingdom.

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 be a distant colony of that country; whether it be the case of Holland in the reign of Philip II., of Belgium or Greece 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. (d).

(d) "It is perfectly true, as has been mentioned, that the term 'recognition' has been much abused; and, unfortunately, that abuse has, perhaps, been supported 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 indepen lence,' and the mother country answers, 'I admit it,' that is recognition in one sense. If the colonies

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.

XII. 1. The first instance belongs more properly to a later part of these commentaries, 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 (e).

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.

(e) Vide ante, vol. i. p. 574.

Mr. Canning's Speech on the Independence of South America, vol. v. p. 295.