a

tions.

V. ACTS FALLING SHORT OF RECOGNITION.

1. OF NEW STATES.

§ 72.

As there is no exclusive mode by which recognition is given, and as governments are sometimes obliged by necessity or Acts and implica- obvious convenience to hold intercourse with communities whose independence it would not be proper to acknowledge, the question whether recognition should be predicated of a particular act may depend upon intention. Holtzendorff mentions the surrender of criminals to a new community as an act of recognition, and it is quite conceivable that it might be so done as to create such an inference; but, as Hall justly observes,' it is not clear "why the surrender of an ordinary criminal to a de facto government, in the possession of regular courts, need more necessarily constitute recognition than does recognition of belligerency," both acts merely implying the acknowledgment, on grounds of political or social convenience, of a de facto exercise of jurisdiction. "It is, of course, direct recognition to publish an acknowledgment of the sovereignty and independence of a new power. It is direct recognition to receive its ambassadors, ministers, agents, or commissioners, officially." The "official reception of diplomatic agents accredited by the new state, the dispatch of a minister to it, or even the grant of an exequatur to its consul, affords recognition by necessary implication." d But neither the sending out to such state of consuls, agents of commerce, or persons to obtain information, nor the reception of its representatives, if these things be done unofficially, constitutes recognition. "In 1823 consuls were appointed by Great Britain to the South American Republics and the various governments were informed that the appointments had been made for the protection of British subjects, and for the acquisition of information which might lead to the establishment of friendly relations. The various consuls took up their appointments and acted, but were not gazetted. The earliest recognition [by Great Britain] took place in 1825."e

The diplomatic agents of the United States to France were permitted Unofficial inter- to reside at Paris and to hold informal intercourse with course; the the Government before the independence of the American Revo- United States was recognized. The case was the same in the Netherlands. Arthur Lee was stopped by the Spanish Government when on his way to Madrid in the spring of 1777, but afterwards Mr. Jay was allowed to reside at Madrid, it being

lution.

a Handbuch, I. § 8.

Int. Law, 4th ed. 93.

с Mr. Seward, Sec. of State, to Mr. Adams, May 21, 1861, Dip. Cor. 1861, 73.

understood that he was not "to assume a formal character, which must depend on a public acknowledgment and future treaty." For several weeks during the summer of 1777, Arthur Lee was permitted to reside at Berlin as a private individual and to hold informal relations with Count Schulenberg, the Prussian minister of foreign affairs." In the autumn of the same year, however, Count Schulenberg intimated that William Lee should not come to Berlin, and that no communication would be held with him if he did. Mr. Lee then went to Vienna, but was not received there. Mr. Dana resided at St. Petersburg for two years as a private individual; he left in August, 1783, having been unable to obtain anything beyond an informal interview with the minister for foreign affairs in the preceding April. Mr. Izard was dissuaded by the minister of the Grand Duke at Paris from proceeding to Tuscany

Revolution in Spanish America.

d

"But while this state of things continues, an entire equality of treatment of the parties is not possible. There are circumstances arising from the nature of the contest itself which produce unavoidable inequalities. Spain, for instance, is an acknowledged sovereign power, and, as such, has ministers and other accredited and privileged agents to maintain her interest and support her rights conformably to the usages of nations. The South Americans, not being acknowledged as sovereign and independent states, can not have the benefit of such officers. We consider it, however, as among the obligations of neutrality to obviate this inequality, as far as may be practicable, without taking a side, as if the question of the war was decided. We listen, therefore, to the representations of their deputies or agents, and do them justice as much as if they were formally accredited. By acknowledging the existence of a civil war, the right of Spain, as understood by herself, is no doubt affected. She is no longer recognized as the sovereign of the provinces in revolution against her. Thus far neutrality itself operates against her, and not against the other party. This also is an inequality arising from the nature of the struggle, unavoidable, and therefore not incompatible with neutrality."

Mr. Adams, Sec. of State, to Mr. Rush, min. to England, Jan. 1, 1819, MS. Inst. to U. S. ministers, VIII. 296.

The message of President Monroe of March 8, 1822, transmitting to the House of Representatives, in response to its resolution of the 30th of the preceding January, correspondence of the agents of the United States with the Spanish-American governments and of the agents of the latter with the Secretary of State of the United States, and proposing the recognition of the independence of those governments, is printed in the Br. and For. State Papers, IX. (1821-1822) 369, and in Am. State Pap. For. Rel. IV. 818.

@ Wharton, Dip. Cor. Am. Rev. I. 292; III. 515, 516.

bid. II. 333, 335, 369.

Id. II. 432, 458.

d Id. II. 715.

€ Id. IV. 679, 696, 710; V. 209; VI. 54, 275, 392, 502, 636.

f Id. II. 455.

Revolution in Yucatan.

The State of Yucatan not having been recognized by any act of this Government, it must still be considered as a component part of the Mexican Republic for all purposes connected with the execution of the law of the United States to which you refer. If, however, the Mexican consul at New Orleans should refuse to comply with the requirements of that law in respect to any vessel from Yucatan, your Department might, without giving just cause for complaint to his Government upon proof of that fact, take the same course as is customary in regard to vessels arriving at our ports where there is no Mexican consul, or in regard to the vessels of such nations, whether recognized by us or not, as have no consuls in the United States. The papers which accompanied your letter are now returned.”

Mr. Webster, Sec. of State, to Mr. Forward, Sec. of the Treasury, Dec. 2, 1841, 32 MS. Dom. Let. 111.

The Confederate
States.

Mr. Seward, in his instructions to Mr. Adams, No. 10, May 21, 1861, took, in relation to "proposed unofficial intercourse, between the British Government and the missionaries of the insurgents," the following position: "Such intercourse would be none the less hurtful to us for being called unofficial, and it might be even more injurious, because we should have no means of knowing what points might be resolved by it. It is left doubtful here whether the proposed unofficial intercourse has yet actually begun. You will, in any event, desist from all intercourse whatever, unofficial as well as official, with the British Government, so long as it shall continue intercourse of either kind with the domestic enemies of this country." a

* * *

Mr. Adams, who was directed not to read or exhibit his instructions to the British secretary of state, but to disclose the positions taken in them as occasion might require, observed, in an interview with Earl Russell, June 12, 1861, that the continued stay of the Confederate commissioners in London, "and still more the knowledge that they had been admitted to more or less interviews with his lordship, was calculated to excite uneasiness," and that it had in fact already given great dissatisfaction to his Government. Mr. Adams continues his report of the interview as follows: "I added, as moderately as I could, that in all frankness any further protraction of this relation could scarcely fail to be viewed by us as hostile in spirit, and to require some corresponding action accordingly.

"His lordship then reviewed the course of Great Britain. He explained the mode in which they had consulted with France, prior to

a Dip. Cor. 1861, 72. See, as to the refusal of the United States, in July, 1891, to receive representatives of the Congressionalists in Chile who had not been recognized as belligerents, For. Rel. 1891, 146, 317.

any action at all, as to the reception of the deputation from the socalled Confederate States. It had been the custom both in France and here to receive such persons unofficially for a long time back. Poles, Hungarians, Italians, etc., etc., had been allowed interviews to hear what they had to say. But this did not imply recognition in their case any more than in ours. He added that he had seen the gentlemen once some time ago, and once more some time since; he had no expectation of seeing them any more.

* * *

"I shall continue my relations here until I discover some action apparently in conflict with it, or receive specific orders from the Department dictating an opposite course."a

In a note to Mr. Adams, November 26, 1861, Earl Russell said: "Her Majesty's Government hold it to be an undoubted principle of international law, that when the persons or the property of the subjects or citizens of a state are injured by a de facto government, the state so aggrieved has a right to claim from the de facto government redress and reparation; and also that in cases of apprehended losses or injury to their subjects states may lawfully enter into communication with de facto governments to provide for the temporary security of the persons and property of their subjects.

*

* *

"It may be necessary in future, for the protection of the interests of Her Majesty's subjects in the vast extent of country which resists the authority of the United States, to have further communications both with the central authority at Richmond and with the governors of the separate States, and in such cases such communications will continue to be made, but such communications will not imply any acknowledgment of the Confederates as an independent state."

In a despatch to Mr. Seward, September 13, 1862, Mr. Dayton, United States minister at Paris, adverts to the frequent references in the press to conferences between Mr. Slidell, as diplomatic agent of the Confederate States, and M. Thouvenel, French minister of foreign affairs. Mr. Dayton, in conversation with M. Thouvenel, asked that "if any propositions or suggestions had come or should come, from any source, affecting the interests of the United States, and which should be entertained or considered by the French Government," he might be advised of them. M. Thouvenel, says Mr. Dayton. "immediately said that he had seen Mr. Slidell once, when he arrived in Paris, about which we knew everything; that afterwards, about the time that Mr. Mason last applied to Earl Russell, and for a like purpose, Mr. Slidell applied to him; that these were the only occasions upon which he had seen Mr. Slidell, and he much doubted if the latter felt greatly flattered by his reception."e

a Mr. Adams to Mr. Seward, June 14, 1861, Dip. Cor. 1861, 87, 88; "Messrs. Yancey, Rost, and Mann were not again received at the foreign office." (Adams, Life of

Charles Francis Adams, 198.)

Dip. Cor. 1862, 8-9.

H. Doc. 551-14

c Dip. Cor. 1862, 389.

Mr. Seward continued to affirm that the informal reception of Confederate emissaries by the officials of foreign governments was improper; but, while he governed his own conduct, so far as unofficial missions from other countries were concerned, by the principle which he advocated, he left untried the policy of retaliatory nonintercourse proposed in his instruction No. 10 to Mr. Adams. Writing to Mr. Bigelow, then United States minister to France, March 13, 1865, Mr. Seward narrated his refusal to admit to an "informal interview" an agent of Maximilian, on the ground that it was the "settled position" of the United States "to hold no interview, public or private, with persons coming from any country other than the agents duly accredited by the authority of that country which is recognized by this Government;" and he added, "This Government has insisted that the opposite position, which to some extent is held in other states, and under which Mason, Slidell, and Mann, insurgent emissaries from this country, are admitted to unofficial conferences, is unfriendly and injurious to the United States. Thus we govern ourselves in our intercourse with other states by the principles that we claim ought to govern them in their relations with the United States." a

Letter of His Holiness the Pope.

In 1863 Mr. Davis sent to the Pope, through Mr. A. Dudley Mann, who was a member of the commission sent abroad to secure the recognition of the Confederate States by European powers, a letter of thanks for the feeling shown by His Holiness in certain open communications to the archbishops of New York and New Orleans, urging all possible efforts toward the restoration of peace. Mr. Mann was instructed to take the letter to Rome, and to that end was commissioned as a special envoy to the Holy See. He reached Rome November 9, 1863, and obtaining, through the Papal Secretary of State, Cardinal Antonelli,

a Dip. Cor. 1865, part 3, p. 378. See also H. Ex. Doc. 20, 39 Cong. 1 sess.; Dana's Wheaton, note 41, § 76, p. 131; Mr. Blaine, Sec. of State, to Mr. Fish, April 5, 1881, MS. Inst., Switzerland, holding that the recognition of a person as a "political agent" of Switzerland did not invest him with a diplomatic character. Wharton, Int. Law Digest, I. 514, referring to Mr. Seward's position, says: "But when a belligerent is recognized as such, this implies an intercourse, at least between agents, in reference to terms of belligerency. This intercourse may be very informal, and, when between belligerents who are parties to a civil war, may for a time be limited to negotiations for exchange of prisoners and for cognate objects. But, as in the case of the late civil war in the United States, the sovereign against whom the insurrection is directed, will, from the necessity of the case, hear informally and unofficially agents from belligerent insurgents as to terms of surrender." In his Diplomatic Correspondence of the American Revolution, II. 370, the same eminent author, in discussing the attitude of Frederick the Great toward the mission of Arthur Lee to Berlin in 1777, goes further and takes the ground that insurgents who have been recognized as belligerents are "entitled to have agents" near the governments by which they have been so recognized.