a Diplomatic or Consular agent to the new Government, or by an act of Congress. The latter course was adopted, in the recognition of the independence of the Spanish-American Republics.” Mr. Buchanan, Sec. of State, to Mr. Marston, consul at Palermo, Oct. 31, 1848, 10 MS. Dispatches to Consuls, 489. The circumstances of this case are given, supra, 112-113. Mr. Buchanan, after the passage above quoted, expressly refers to the act of May 4, 1822, the terms of which have just been given. (Supra, 85, 243.) Mr. Mann's instructions. "Should the new Government prove to be, in your opinion, firm and stable, the President will cheerfully recommend to Congress, at their next session, the recognition of Hungary, and you might intimate, if you should see fit, that the President would in that event be gratified to receive a diplomatic agent from Hungary in the United States by or before the next meeting of Congress, and that he entertains no doubt whatever that in case her new Government should prove to be firm and stable, her independence would be speedily recognized by that enlightened body." Mr. Clayton, Sec. of State, to Mr. Mann, special and confidential agent to Hun- Wharton, Int. Law Dig., I. 553, referring to this passage, says: "As to this it It was maintained by Mr. Seward that the recognition of revolutionary or reactionary governments belongs exclusively to the Executive, and can not be determined internationally by Congressional action. Position of Mr. Mr. Seward, Sec. of State, to Mr. Dayton, April 7, 1864, MS. Inst. France, That the power of recognition belongs exclusively to the Executive is main- Decisions of the "It is for governments to decide whether they will consider St. Domingo as an independent nation, and until such decision shall be made, or France shall relinquish her claim, courts of justice must consider the ancient state of things as remaining unaltered, and the sovereign power of France over that colony as still subsisting." Marshall, C. J., Rose v. Himely (1808), 4 Cranch, 239, 272. The same principle is laid down in Gelston v. Hoyt, 3 Wheat. 324; The Nueva Where property, captured in the autumn of 1813, was claimed by a native of Buenos Aires, who carried on trade there with his father and sister as partners, and who had been "admitted a freeman of the new Government," which the United States had not recognized, he was accorded the rights of a Spanish subject, under the treaty between the United States and Spain of 1795. The Nereide (1815), 9 Cranch, 388. The course of the United States with reference to a revolted portion of a foreign nation is regulated and directed by the legislative and executive departments of the Government, and not by the judicial department. If the Government remains neutral, and recognizes the existence of a civil war, the courts can not consider as criminal those acts of hostility which war authorizes, and which the new government may direct against its enemy. The persons or vessels employed in the service of a territory whose belligerency has been recognized by this Government must be permitted to prove the fact of their being so employed by the same testimony as would be sufficient to prove that such person or vessel was employed in the service of an acknowledged state. The seal of such unacknowledged government can not be permitted to prove itself, but may be proved by such testimony as the nature of the case admits; and the fact that a person or vessel is in the service of such government may be proved without proving the seal. U. S. . Palmer, 3 Wheat. 610. See the Estrella, 4 Wheat. 298. The Executive having recognized the existence of a state of war between Spain and her South American colonies, the courts of the union are bound to consider as lawful those acts which war authorizes, and which the new Governments in South America may direct against their enemy. Captures made under their commissions are to be treated by the courts as other captures, and their legality can not be determined unless they were made in violation of the neutral rights of the United States. Divina Pastora, 4 Wheat. 52; Josefa Segunda, 5 Wheat. 338. The courts follow the Executive in the recognition of belligerency, even in the cases of domestic insurrection. The Prize Cases, 2 Black, 735; U. S. v. Yorba, 1 Wall. 412; U. S. v. Hutchings, 2 Wheel. C. C. 543; The Hornet, 2 Abbott (U. S.), 35; U. S. v. Baker, 5 Blatch. 6; 1 Brunner C. C. 489. See also Dana's Wheaton, note, § 23, pp. 34, 36. "It belongs to the political department to determine when belligerency shall be recognized, and its action must be accepted according to the terms and intention expressed." The Three Friends (1897), 116 U. S. 1, 63. In this case the court followed the action of the Executive in recognizing a state of revolt or insurgency, as distinguished from belligerency, such appearing to be the Executive intention. See, particularly, Underhill v. Hernandez (1897), 168 U. S. 250. VII. CONTINUITY OF STATES. 1. TERRITORIAL CHANGES. § 76. Mere territoral changes, whether by increase or by diminution, do not, so long as the identity of the state is preserved, affect the continuity of its existence or the obligations of its treaties. Prussia, after the peace of Tilsit, in 1807, lost almost a third of its territory. The Kingdom of Saxony, by the treaty of Vienna, was reduced to a half of its previous dimensions. France, in 1815 and 1871, and Turkey, in 1829 and 1878, both were deprived of territory. Austria lost, in 1859, its richest province, Lombardy, and, in 1866, Venetia. In none of these cases was the continuity or the identity of the state destroyed, nor was the general force of its international obligations held to be impaired. Martens, Traité de Droit Int., I. § 68. Rivier, Principes du Droit des Gens, I. 63-65. 2. CHANGES IN POPULATION. $ 77. What has been said as to territorial changes applies also to changes in population. Population is incessantly renewed; and its numbers and racial character may be strongly modified, even without any gain or loss of territory. When the Great Elector received the Protestant French, the population of the countries which went to make up the Prussian monarchy acquired an element speaking a different language, and of great intellectual, moral, and numerical importance. From the point of view of international law, the states concerned suffered no change. The case was the same with Geneva in the sixteenth century, and, in a different measure, at the end of the seventeenth and eighteenth centuries. Rivier, Principes du Droit des Gens, I. 63-65. 3. POLITICAL CHANGES. $ 78. Changes in the government or the internal polity of a state do not as a rule affect its position in international law. A monarchy may be transformed into a republic or a republic into a monarchy; absolute principles may be substituted for constitutional, or the reverse; but, though the government changes, the nation remains, with rights and obligations unimpaired. There may be produced, however, a change in rank, as by the conversion of a kingdom into a principality, or the reverse. The principle of the continuity of states has important results. The state is bound by engagements entered into by governments that have ceased to exist; the restored government is generally liable for the acts of the usurper. The governments of Louis XVIII. and Louis Philippe so far as practicable indemnified the citizens of foreign states for losses caused by the government of Napoleon; and the King of the Two Sicilies made compensation to citizens of the United States for the wrongful acts of Murat. Rivier, Principes du Droit des Gens, I. 62. The full history of the French indemnities to citizens of the United States, under the conventions of 1803 and 1831, is given in Moore, International Arbitrations, V. 4399, 4447. The indemnities paid by France to other powers are noticed in the same volume, 4862. The history of the indemnity made by the King of the Two Sicilies may also be found there, Chapter G, 4575, and, particularly, as to the principle of liability, 4576-4581. The decisions of the commission under the Florida treaty upon questions as to the liability of Spain for the acts of the French in that country are given in the same volume, 4512 et seq. "It may be true, as alleged by Baron de Damas, that the King of France, in reascending the throne, 'could not take, nor has taken, the engagement to satisfy all the charges imposed on him as indemnity for the acts of violence and for the depredations committed by the usurping Government' [of Napoleon]; and yet the obligations of France to redress those acts and depredations may be perfect. It is not necessary to discuss the question of usurpation which is put forward. It is sufficient for us that those acts and depredations proceeded from the actual Government of France; and that the responsibility of France to make reparations for wrongs committed under the authority of any form of government which she may have adopted, or to which she may have submitted, from time to time, can not be contested. The King of France, in reascending the throne of his ancestors, assumed the government, with all the obligations, rights, and duties which appertain to the French nation. He can justly claim absolution from none of those obligations or duties. And our complaint is precisely, that he has not taken upon himself the engagement to make that indemnity to which American citizens are entitled in consequence of the wrongful acts committed under previous French Governments." Mr. Clay, Sec. of State, to Mr. Brown, minister to France, May 28, 1827, H. The same principle is restated in Mr. Van Buren, Sec. of State, to Mr. Rives, The same principle was laid down in the case of the Prince of Hesse Cassel in "The origin and organization of government are questions generally of internal discussion and decision. Foreign powers deal with the existing de facto government, when sufficiently established to give reasonable assurance of its permanence, and of the acquiescence of those who constitute the state in its ability to maintain itself, and to discharge its internal duties and its external obligations. "If the government which a people have placed in power, or have consented to its exercise of power, misbehave and violate or transcend their limited functions, it is the misfortune of those who have placed it in power or consented to its elevation and to its discharge of public trusts. Its misconduct should not be visited upon individuals who honestly enter into engagements with its official representatives. To admit this would destroy all security in such contracts or engagements and would necessarily destroy the credit of the state, while working grievous injustice to those who may be furnishing the very means for the conduct of the affairs of the government." Mr. Fish, Sec. of State, to Mr. Bassett, minister to Hayti, Feb. 21, 1877, MS. Inst. Hayti, II., 91, referring to a legislative act of the existing Government of Hayti declaring the acts and engagements of the preceding administration invalid. Mr. Bassett was instructed to express to the Haytian Government, in advance of the possibility of a practical question arising, the hope that it would not insist upon the application of a principle which the United States could not but regard as being "in conflict with accepted law" and as "tending to injure the credit and the high sense of obligation" of " Hayti. |