Government continues, other states may remain indifferent spectators of the controversy, still continuing to treat the ancient Government as sovereign, and the Government de facto as a society entitled to the rights of war against its enemy; or may espouse the cause of the party which they believe to have justice on its side. In the first case, the foreign state fulfills all its obligations under the law of nations; and neither party has a right to complain, provided it maintains an impartial neutrality. In the latter it becomes, of course, the enemy of the party against whom it declares itself, and the ally of the other; and as the positive law of nations makes no distinction in this respect between a just and unjust war, the intervening state becomes entitled to all the rights of war against the opposite party." This passage Sir W. Harcourt accepts, saying that, in the view of Mr. Wheaton, "the question of recognition. is clearly one of law, and not of policy only." He proceeds, however, to admit that this position of Mr. Wheaton cannot easily be reconciled with a passage from the same author a few pages further on, in which passage there "is a looseness of statement which is somewhat unsatisfactory. It appears, however, that in Mr. Wheaton's opinion, the part of 'an impartial neutrality' is to abide the event of the contest, and this is the only contest which, Mr. Wheaton says, 'neither party has a right to complain of.' He places the acknowledgment of indepen. dence,' and the joining in alliance,' with one of the belligerents, in another category, and treats them both as a question of politics rather than of law. But, as 'joining in alliance' would certainly be a ground of war, perhaps he means that the acknowledgment of independence,' without abiding the event of the contest,' would be in itself an act of hostile intervention, and, consequently, belong rather to the province of politics than of law." VII. SUCH RECOGNITION DETERMINABLE BY EXECUTIVE. § 71. The question of recognition of foreign revolutionary or reactionary Governments is one exclusively for the Executive, and cannot be determined internationally by Congressional action. Mr. Seward, Sec. of State, to Mr. Dayton, Apr. 7, 1864. MSS. Inst., France. Whether a revolted colony is to be treated as a sovereign state is a political question to be decided by governments, not by courts of justice; and the courts of the United States must consider the ancient state of things remaining, until the sovereignty of the revolting colony is acknowledged by the Government of the United States. Rose r. Himely, 4 Cranch, 241; Kennett v. Chambers, 14 Howard, 38; Gelston v. Hoyt, 3 Wheat., 324. The course of the United States with reference to a revolted portion of a foreign nation is regulated and directed by the legislative and execu tive 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 cannot 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 terri tory 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 cannot 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. v. Palmer, 3 Wheat., 610. See the Estrella, 4 Wheat., 298. As to piracy in such cases, see infra, § 361. The Government of the United States having recognized the exist ence of civil war between Spain and her 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 cannot be determined unless they were made in violation of the neutral rights of the United States. Divina Pastora, 4 Wheat., 52. There existing between Spain and her revolted colony-the Republic of Venezuela-an open war, in which the Government of the United States maintains strict neutrality, the courts cannot interfere with a capture made by a cruiser sailing under a commission from the revolting belligerent. The Josefa Segunda, 5 Wheat., 338. The United States not having acknowledged the existence of any Mexican Republic or State at war with Spain, the Supreme Court does not recognize the existence at Galveston of any lawful court of prize. The Nueva Anna, 6 Wheat., 193. In political matters the courts follow the department of the Govern ment to which those matters may be committed, and will not recognize the existence of a new Government until it has been recognized by the Executive. U. S. v. Pico, 23 Howard, 326; The Prize Cases, 2 Black, 635; U. S. r. Yorba, 1 The judiciary follows the Executive on the question of recognition of belligerent rights. U. S. v. Palmer, 3 Wheat., 610; The Nueva Anna, 6 Wheat., 193. As a civil war is never publicly proclaimed, eo nomine, against insurgents, its actual existence is a fact in our domestic history which the courts are bound to recognize. As, in the case of an insurrection, the President must, in the absence of Congressional action, determine what degree of force the crisis demands, and as in political matters the courts must be governed by the decisions and acts of the political department to which this power is intrusted, the proclamation of blockade by the President is of itself conclusive evidence that a state of war existed which demanded and authorized recourse to such a measure. The Prize Cases, 2 Black, 635. Courts having an international jurisdiction may take notice of existing sovereignties from the fact of their continuous existence as such, and their recognition as such in history. Consul of Spain v. the Conception, 2 Wheel., Cr. Cas., 597; 1 Brunner, Col. Cas. 597; S. P., the Maria Josepha, 2 Wheel., Cr. Cas. 600; 1 Brunner, Col. Cas. 500. Compare Williams v. Suffolk Ins. Co., 13 Pet., 415; affirming 3 Sumn., 270. As to non-reception by President of foreign political malcontents, see infra, § 91. The action of President Taylor, through Mr. Clayton, Secretary of State, in sending, in June, 1849, Mr. A. D. Mann as a special agent to investigate the condition of the Hungarian insurrection, is elsewhere considered. (Supra, § 47.) In Mr. Mann's instructions, June 18, 1849, is the following: "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." As to this it is to be remarked that while Mr. Webster, who shortly afterwards, on the death of President Taylor, became Secretary of State, sustained the sending of Mr. Mann as an agent of inquiry, he was silent as to this paragraph, and suggests, at the utmost, only a probable Congressional recognition in case the new Government should prove to be firm and stable. In making Congress the arbiter, President Taylor followed the precedent of President Jackson, who, on March 3, 1837, signed a resolution of Congress for the recognition of the independ ence of Texas. The recognition, however, by the United States, of the independence of Belgium, of the powers who threw off Napoleon's yoke, and of the South American states who have from time to time declared themselves independent of prior Governments, has been primarily by the Executive, and such also has been the case in respect to the recognition of the successive revolutionary Governments of France. VIII. ACCRETION, NOT COLONIZATION, THE POLICY OF THE UNITED STATES. § 72. The possession by Spain of the mouth of the Mississippi might have been tolerated by the United States from the fact that she was already in possession, and that her power was not such as to make her control of that territory, though annoying and disadvantageous, necessarily a peril to the United States; but if France should have taken possession under treaty from Spain, "the worst effects are to be apprehended,” and the United States would take the most vigorous measures, even though they should involve war, to avert such a calamity. Mr. Madison, Sec. of State, to Mr. Livingston, May 1, 1802. MSS. Inst., Ministers. To same effect, see Mr. Madison to Mr. C. Pinckney, May 11, 1802; Mr. Madison to Messrs. Livingston and Monroe, Mar. 2, 1803, ibid. See also infra, §§ 148, 154; supra, § 58. "The cession of Louisiana and the Floridas by Spain to France works most sorely on the United States. On this subject the Secretary of State has written to you fully; yet I cannot forbear recurring to it per sonally, so deep is the impression it makes on my mind. It completely reverses all the political relations of the United States, and will form a new epoch in our political course. Of all nations of any consideration, France is the one which, hitherto, has offered the fewest points on which we could have any conflict of right, and the most points of a communion of interests. From these causes we have ever looked to her as our natural friend, as one with which we never could have an occasion of dif ference. Her growth, therefore, we viewed as our own, her misfortunes ours. There is on the globe one single spot, the possessor of which is our natural and habitual enemy. It is New Orleans, through which the produce of three-eighths of our territory must pass to market, and from its fertility it will ere long yield more than half of our whole produce, and contain more than half of our inhabitants. France, placing herself in that door, assumes to us the attitude of defiance. Spain might have retained it quietly for years. Her pacific dispositions, her feeble state, would induce her to increase our facilities there so that her possession of the place would hardly be felt by us, and it would not, perhaps, be very long before some circumstance might arise which might make the cession of it to us the price of something of more worth to her. can it ever be in the hands of France; the impetuosity of her temper, the energy and restlessness of her character, placed in a point of eternal friction with us and our character, which, though quiet and loving peace and the pursuit of wealth, is high-minded, despising wealth in competition with insult or injury, enterprising, and energetic as any nation on earth. These circumstances render it impossible that France and the United States can continue long friends when they meet in so irritable a position. They, as well as we, must be blind if they do not see this, and we must be very improvident if we do not begin to make arrangements on that hypothesis. The day that France takes posses sion of New Orleans fixes the sentence which is to retain her forever within her low-water mark. It seals the union of two nations who, in conjunction, can maintain exclusive possession of the ocean. From that moment we must marry ourselves to the British fleet and nation. We must turn all our attention to a maritime force, for which our re sources place us on very high ground, and having formed and connected together a power which may render re-enforcement of her settlements here impossible to France, make the first cannon which shall be fired in Europe the signal for the tearing up any settlement she may have made, and for holding the two continents of America in sequestration for the common purposes of the united British and American nations. Not so This is not a state of things we seek or desire. It is one which this measure, if adopted by France, forces on us as necessarily as any other cause, by the laws of nature, brings on its necessary effect. It is not from a fear of France that we deprecate this measure proposed by her, for, however greater her force is than ours, compared in the abstract, it is nothing in comparison to ours when to be exerted on our soil, but it is from a sincere love of peace, and a firm persuasion that, bound to France by the interests and strong sympathies still existing in the minds of our citizens, and holding relative positions which insure their continuance, we are secure of a long course of peace, whereas the change of friends, which will be rendered necessary if France changes that position, embarks us necessarily as a belligerent power in the first war of Europe. In that case France will have held possession of New Orleans during the interval of a peace, long or short, at the end of which it will be wrested from her. Will this short-lived possession have been an equivalent to her for the transfer of such a weight into the scale of her enemy? Will not the amalgamation of a young, thriving nation continue to that enemy the health and force which are now so evidently on the decline? And will a few years' possession of New Orleans add equally to the strength of France? She may say she needs Louisiana for the supply of her West Indies. She does not need it in time of peace, and in war she could not depend on them, because they would be so easily intercepted. I should suppose that all these considerations might in some proper form be brought into view of the Government of France. Though stated by us, it ought not to give offense, because we do not bring them forward as a menace, but as consequences not controllable by us, but inevitable from the course of things. We mention them not as things which we desire by any means, but as things we deprecate, and we beseech a friend to look forward, and to prevent them for our common interest." President Jefferson to Mr. Livingston, Apr. 18, 1802. 4 Jeff. Works, pp. 431433; 3 Randall's Jefferson, 6. "As the question may arise, how far in a state of war one of the parties can of right convey territory to a neutral power, and thereby deprive its enemy of the chance of conquest incident to war, especially when the conquest may have been actually projected, it is thought proper to observe to you, first, that in the present case the project of peaceable acquisition by the United States originated prior to the war, and consequently before a project of conquest could have existed; secondly, that the right of a neutral to procure for itself by a bona fide transaction property of any sort from a belligerent power ought not to be frus trated by the chance that a rightful conquest thereof might thereby be precluded. A contrary doctrine would sacrifice the just interests of peace to the unreasonable pretensions of war, and the positive rights of one nation to the rights of another. A restraint on the alienation of territory from a nation at war to a nation at peace is imposed only in cases where the proceeding might have a collusive reference to the existence of the war, and might be calculated to save the property from danger, by placing it in secret trust, to be reconveyed on the |