the Republic which was established in his place? If this were so, then it would follow that no Englishman could safely contract even with the present Government of France, or, indeed, with any existing Government; for such Government was in its turn liable to be displaced by some other Government, which might treat its acts as void. In the present case the law must therefore be taken to be that, an Englishman or Frenchman could safely contract with Señor Pierola's Government, if not before, at any rate after, that Government had been recognised by Great Britain and France respectively. That view was borne out by the English decisions, such as Barclay v. Russell (3 Ves. Junr. 424), The City of Berne v. The Bank of England (9 Ves. Junr. 347), and The United States of America v. McRae (L. R. 8 Eq. 69); as well as by the decisions of the Supreme Court of the United States, such as Gelston v. Hoyt (3 Wheat. 246, 324). The learned Judge also quoted with approval the statement made by Wheaton (International Law, 2nd edit. p. 41), to the effect that transactions duly entered into between a de facto Government and foreign States or subjects ought to be recognised as valid by the lawful Government on its restoration to power, notwithstanding that it might consider the prior Government to have been unlawful, and even though it might think fit to pursue some other course with respect to transactions between the de facto Government and its own subjects. Even in the case of a rebel Government, which had not been recognised as independent, it had been held that upon the suppression of the rebellion the parent State could not recover (as against foreign subjects) anything but what the rebel Government could have recovered. Hence it followed in the present case that the existing Government could not recover the proceeds of the cargoes in question unless the Government of Pierola could have done so, and inasmuch as it was clear that the latter could not have recovered them in derogation of its own contract, it was not open to the present Government to do so.

The decision in this case is virtually an application of the same principle as that laid down in the case of The Sapphire (supra), with the substitution of the term Government for the term Sovereign. It was held, in fact, that any obligations duly entered into by a de

facto Government-as the recognised organ of the State for the time being-with foreign subjects would be binding on any succeeding Government, even though not in privity with its predecessor. And, although some stress was laid on the previous recognition of the de facto Government by the contractors' own Government, as a condition essential to complete safety, it was nevertheless recognised that even where a transaction had been entered into between a foreigner and a rebel Government which had not been recognised as independent, the succeeding Government could not recover from the former anything but what the rebel Government could have recovered (x).

GENERAL NOTES.-The External Representation of States.-A State, like a corporation or any other juristic person, can only act through some visible representative. In considering the subject of State representation, however, it is desirable, in the first place, to distinguish the question of the representation of a State in its international relations from the question of its representation for the purposes of suit in foreign Courts, which is for the most part a question of municipal law (a). Next, it is desirable to distinguish the plenary representation of a State by its Sovereign or Government, for all purposes in the domain of external relations, from its representation by particular agents, such as ambassadors and envoys, for the conduct of some particular business, or in relation to some particular State (b). Finally, it is desirable to distinguish between the titular headship of a State and the actual controlling authority in its external relations. The Titular Headship of a State.-Every State has a titular head who represents the State formally in its foreign relations. In monarchical States these functions naturally devolve on the Sovereign or ruler; and in such States the Sovereign is not only the formal representative of the State, but all acts of State are commonly done in his name. Such Sovereigns are, in fact, in international law invested with two sets of rights and attributes; the one personal to themselves, although available only so long as they remain sovereign; and the other belonging to the States of which they are the formal representatives. In republics the titular headship of the State may be vested either in a single person, such as the president, as in France; or in a body of persons or council, as in Switzerland. But in the case of republics acts of State, although done through and, so far as his competence extends, by the titular head, are yet not done in his name, but in the name of the State itself. As regards both Sovereigns and other titular heads of States, it is usual to notify to other States any change in the titular headship, although such a proceeding is merely a matter of courtesy and convenience.

The "Government" of a State.-In every State there is some person or body which, under the constitution for the time being in force, is entrusted with the control and direction of the policy and action of

(x) Supra, p. 71.

(a) As to the rights of suit of foreign States in the English Courts,

and the style under which they must sue, see p. 91, infra.

(b) Infra, p. 312.

the State in relation to other States. It is this person or body that controls all subordinate agents, including the Minister immediately charged with the conduct of foreign affairs, and as well as those other officers, civil, or military, or diplomatic, who aid in the carrying on of the business of the State in its external relations. The seat of this controlling authority varies, of course, with the constitution of different States. In some States, such as Great Britain, although the Sovereign is technically the controlling authority, yet constitutionally the real controlling authority is vested in "his Majesty's Government" (c). Even in republics the controlling authority may rest with the titular head of the State for the time being; although more often the titular head only constitutes a member of such controlling body. But wherever this authority may lie, it is only by its action that the State will be bound in its external dealings; the Foreign Minister or Foreign Office being only its accredited agent for certain purposes (d). This body can scarcely be designated as the Sovereign body, for the reason that it often is not identical either with the "titular Sovereign," or with that body which is "legally Sovereign." In The Republic of Peru v. Dreyfus, as well as in other cases, this body is styled the "Government" of the State; and despite some obvious objections (e) it is perhaps convenient to adopt this as a term of description. We have thus to take count of the State itself, which is always the true international person, and sometimes also a juristic person, in municipal law; the titular head" of the State, who is usually, although not invariably, its formal international representative; and the Government" of the State, which is sometimes identified with the titular headship and sometimes not, but which in any case we shall take to denote that body which really directs and controls the external relations of the State.

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The Recognition of Governments."—The question of recognition has already been considered so far as relates to the recognition of new States of international law, and the recognition of belligerency (ƒ). The notification and recognition, as a matter of formal courtesy, of the accession of a new Sovereign or titular head of a State have also been noticed. But, apart from this, changes may occur, whether by revolution or otherwise, in the fundamental organisation of a State, or in the character of its sovereign body, in virtue of which the authority which formerly controlled its external relations is replaced by some other authority not in privity with it; and in such a case the change of Government is usually subject to the recognition of other States. The object of this is to enable other States to judge of the probable stability of the new Government " before entering into relations

(c) Although in this, as in other cases, a very circumscribed prerogative is not, perhaps, incompatible with the exercise of considerable personal influence in the domain of foreign affairs.

(d) It may, in fact, be necessary to ascertain that the body or authority for whom even an accredited agent acts, really represents the State in the

matter in question; infra, p. 332.

(e) As that it is somewhat vague and ambiguous; whilst in English law it is not a term of the law, and conveys no notion of legal personality: cf. Sloman v. The Governor and Government of New Zealand (L. R. 1 C. P. D. 563); and The Colombian Government v. Rothschild (1 Sim. 94). (f) Supra, pp. 49, 68, 69.

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with it. Recognition in this case is a matter of discretion; but if the new Government maintains its position such recognition cannot long be withheld, for the reason that non-recognition would virtually mean a complete breaking off of diplomatic relations. At the same time, in cases where the prior Government has been displaced under circumstances involving the disapproval of any other State or States, formal diplomatic relations are sometimes suspended, in token of disapproval; although even in this case intercourse is often allowed to continue informally or unofficially. Thus, after the murder of King Alexander of Servia, and the accession of King Peter, Great Britain refused to maintain diplomatic relations with Servia; and these were not formally revived until the retirement of the offending officers in 1906. The propriety of this proceeding, however, has been questioned, as involving an interference in the internal affairs of another State. The question of the status of the Esthonian National Council was raised in The Gagara [1919] P. 95. It was stated by the AttorneyGeneral on behalf of the Foreign Office that his Majesty's Government had recognised the Council as a de facto independent Government, and had received an informal diplomatic representative of the Provisional Government. It was held by the Court of Appeal, affirming the decision of Hill, J., that such provisional recognition accorded, for the time being, to the Esthonian National Council the status of a foreign Sovereign.

On the other hand, in The Lomonosoff [1921] P. 97, the Court refused to recognise the Bolsheviks who had overturned the Government of Northern Russia in February, 1920, as a politically organised society. The particular agents of States in their external relations, together with their privileges and immunities, will be considered hereafter (g).

ACTS OF STATE IN INTERNATIONAL LAW.

MCLEOD'S CASE.

[1842; Parl. Papers, 1843, vol. Ixi.; Wharton, Digest, vol. i. p. 64 et seq.; Moore, International Arbitrations, iii. 2419.]

Case.] IN January, 1841, a British subject named McLeod was arrested, whilst in the State of New York, on a charge of having been concerned in the murder of one Durfee, a United States citizen. Durfee had been killed in 1838 in the course of an attack which had been made on the "Caroline," under the following circumstances (h): The "Caroline " was a small

(g) Infra, p. 312.

(h) Infra, p. 168.

passenger steamer carrying the American flag and on the American register; but at the time in question she was in fact in the employment of the Canadian insurgents. The latter, who had armed and organised on American territory, in the neighbourhood of Niagara, were proposing to use the vessel for the purpose of making a descent on British territory. In order to prevent this a British force crossed the river by night, and after a short resistance took possession of the "Caroline," and sent her adrift down the falls of Niagara. It was in the course of this attack that Durfee was killed; and McLeod, who was an officer in the Colonial forces, was one of the assailants.

Controversy.] On McLeod's arrest, the British Minister at Washington at once demanded his release, claiming that the destruction of the " Caroline was a public act, done by persons in her Majesty's service, acting in obedience to superior orders; and that the responsibility, if any, rested with her Majesty's Government, and could not, according to the usage of nations, be made a ground of legal proceedings against the individuals concerned, who were bound to obey the authorities appointed by their own Government. The United States Government replied that, as the matter had passed into the hands of the Courts, it was out of its power to release McLeod summarily; and that its action must be confined to using all possible means to secure his liberation at the hands of the Courts, and to seeing that no sentence improperly passed upon him was executed. Great Britain, however, caused it to be understood that the condemnation and execution of McLeod would be followed by a declaration of war (i). A writ of habeas corpus was applied for on McLeod's behalf; but the Courts of the State of New York refused to release him; with the result that, after being detained in prison for several months, he was ultimately brought to trial and acquitted (k). In the course of the correspondence that took place Mr. Webster, the United States Secretary of State, admitted that his Government was not inclined to dispute that it was a principle of public law, sanctioned by the usages of all

(i) Lord Palmerston, then Secretary of State for Foreign Affairs, told Mr. Stevenson, the U.S. Minister in London, that such would be the case.

(k) Apparently on proof of an alibi; the State Courts having rejected the defence of act of State; Scott, p. 67.