¹ Message, Apr. 3, 1848, S. Ex. Doc. 32, 30th Cong., 1st sess.; Richardson's Messages, IV, 576; Moore's Int. Law Dig., I, 125.

² Sec. Van Buren to Mr. Moore, American Minister to Colombia, June 9, 1829, Moore's Dig., 1,137. Similar statements by Presidents, Secretaries of State, and other authorized officials will be found in Moore, I, §§ 27-58.

³ Agency of Canadian Car & Foundry Co. v. American Can Co., 253 F. 152 (D. C. N. Y. 1918); The Penza, 277 F. 91 (D. C. N. Y. 1921); The Rogdai, 278 F. 294 (D. C. CaL 1920); Russian Government v. Lehigh Valley R. R., 293 F. 135 (D. C. N. Y. 1923); Russian Socialist Fed. Sov. Rep. v. Cibrario, 198 App. Div. 869,191 N. Y. S. 543 (1921), 235 N. Y. 255, 139 N. E. 259 (1923).

⁴ Wulfsohn v. Russian Soc. Fed. Sov. Rep., 234 N. Y. 372, 138 N. E. 24 (1923); for decisions below, see 118 Misc. 28, 192 N. Y. S. 282 (1922); 202 App. Div. 421, 195 N. Y. S. 472 (1922). So in Banque de France v. Equitable Trust Co., 33 F. (2d) 202,207 (D. C. N. Y. 1929), property of the Soviet Government (gold) was properly held immune from attachment by an owner who claimed that it had been confiscated from it in Russia.

⁵ 9 Ves. 347 (1804). In The Sapphire, 11 Wall. 164 (U. S. 1871), it was said that “the next successor recognized by our government ” is competent to carry on a suit already commenced.

⁶ Russian Soc. Fed. Sov. Rep. v. Cibrario, 235 N. Y. 255, 139 N. E. 259 (1923); for decisions below, see 198 App. Div. 869,191 N. Y. S. 543 (1921); Preobazhenski v. Cibrario, 192 N. Y. S. 275 (S. Ct. S. T., 1922). In Republic of China v. Merchants' Fire Assur. Corp., 30 F. (2d) 278 (C. C. A. 9th, 1929), a suit brought by the National Government on an insurance policy, before recognition by the United States, was dismissed; but, pending appeal to the Circuit Court of Appeals, recognition was extended, whereupon the judgment of dismissal was reversed. Judge Rudkin's remarks on that occasion are open to criticism. He said: “The courts of this country cannot recognize the existence of a government which originates in revolution or revolt, until it has first been recognized by the political department of the government, and inasmuch as there had been no such recognition of the National Government of China at the time of the trial in the court below, it would seem to follow that that government had no existence in contemplation of law and no legal capacity to sue in the courts of this country.” [30 F. (2d) 279.] My attention has been called to the fact that the Court of Appeals of Li&ge (Belgium) has sustained the view taken by the New York Court of Appeals in the Cibrario Case, in Despa v. TJ. S. S. R., Feb. 20, 1931, Pasicrisie Beige, Vol. 118, No. 7-9, July-Sept. 1931, p. 108.

⁷ Said Chief Justice Best in the leading case of Yrisarri v. Clement, 2 C. &’ P. 223, 225 (1825): “If a foreign state is recognized by this country, it is not necessary to prove that it is an existing state; but if it is not so recognized, such proof becomes necessary.” Circuit Judge Johnson in Consul of Spain v. The Concepci6n, Fed. Cas. 3137 (1819), a well-reasoned opinion, concluded that the fact of national independence (existence) may be deduced by courts from history, and that “no official recognition is necessary.”

⁸ (1922) 31 Yale L. J. 534.

⁹ The Penza, 277 F. 91 (D. C. N. Y. 1921); The Rogdai, 278 F. 294 (D. C. Cal. 1920); The Rogday, 279 F. 130 (D. C. Cal. 1920). Baty, one of the most eminent of contemporary international lawyers, maintains persuasively that the Soviet Republic is a new state, and that the Soviet Government is not the successor of the Czar's Government in the old state of Russia. Canons of International Law (1930), p. 229.

¹⁰ Cf. Agency of Canadian Car & Foundry Co. v. American Can Co., 253 F. 152 (D. C. N. Y. 1918); and cases, note 11.

¹¹ Russian Gov't v. Lehigh Valley R. R., 293 F. 135 (D. C. N. Y. 1923); s. c., 293 F. 133 (D. C. N. Y. 1919); Ex parte Lehigh Valley R. R. Co., 265 U. S. 573, 44 S. Ct. 460 (1924); Government of Mexico v. Fernandez, Superior Court, Essex County, Mass., this JOTJBNAL, Vol. 17 (1923), 743. The court's permission to Mr. Ughet, Mr. Bakhmeteff's financial attaché, to prosecute the Lehigh Valley case seems of questionable propriety, notwithstanding the fact that the executive appears to have entered into an agreement providing for the deposit of the funds in the Treasury, pending the recognition of a government in Russia and, presumably, a financial adjustment with Russia.

¹² The Constitution confers jurisdiction upon the federal courts in cases where foreign states are parties. Art. III, sec. 2.

¹³ 68 Ct. Cl. 32 (1929), rev'd in 282 U. S. 481, 51 S. Ct. 229 (1931), this JOURNAL, Vol. 26 (1932), p. 159.

¹⁴ 282 U. S. 481, 492, 51 S. Ct. 229, 232 (1931).

¹⁵ 7 Wall. 700, 733 (1869).

¹⁶ The dictum in Sokoloff v. National City Bank, 239 N. Y. 158,165, 145 N. E. 917, 918 (1924): “Juridically, a government that is unrecognized may be viewed as no government at all, if the power withholding recognition chooses thus to view it,” is respectfully believed to be without justification. And if recognition in the following sentence means political recog-nition, the statement is open to question: “Acts or decrees to be ranked as governmental, must proceed from an authority recognized as a government de facto.” (Ibid., p. 161.) De facto belligerents in the field whose acts are given a large degree of legal validity in foreign courts, are not recognized governments in any sense. See cases, note 24. See also Pelzer v. United Dredging Co., New York Supereme Court, by McAvoy, J., reported by Dickinson in 22 (1923) Mich. L. Rev. 30, note 5. I have been unable to find the printed opinion in N. Y. Misc. Rep. or App. Div. “The Mexican Government is not de facto here, since recognition alone can make it so … its power as a government remains nil without our patent of recognition.” Cf. Werenjchik v. Ulen Contracting Corp., 229 App. Div. 36,240 N. Y. S. 619 (1930), where official certifications by Soviet officers were accepted as proof of the facts certified.

¹⁷ Russian Reinsurance Co. v. Stoddard, 240 N. Y. 149, 158, 147 N. E. 703, 705 (1925). See the following: “The courts in considering that [judicial] question assume as a premise that until recognition these acts are not in full sense law.” “Until the State Department has recognized the new establishment, the court may not pass upon [the unrecognized government's] legitimacy or ascribe to its decrees all the effect which inheres in the laws or orders of a sovereign.” This is believed to be unsound.

¹⁸ Fred S. James & Co. v. Second Russian Reinsurance Co., 239 N. Y. 248,146 N. E. 369 (1925).

¹⁹ Sokoloff v. National City Bank, 239 N. Y. 158,166,145 N. E. 917,919 (1924). See also 250 N. Y. 69,164 N. E. 745 (1928).

²⁰ Mr. Habicht, in his article in this JOURNAL, “The Application of Soviet Laws and the Exception of Public Order” Vol. 21 (1927), 238, 252, appropriately remarks that this is an inversion of the correct principle, namely, that the Soviet decrees should be deemed law, but that they will not be enforced if in a given case they are contrary to the public policy of the forum. Non-recognition is immaterial. This well-known rule of conflict of laws is exemplified in Kaufman v. Gerson, [1904, C. A.] 1 K. B. 591.

²¹ See Petrogradsky Mejdunarodny Kommerchesky Bank v. National City Bank, 253 N. Y. 23,170 N. E. 479 (1930), and James and Sokoloff cases, supra.In England effect was given to these decrees in Russian Commercial & Industrial Bank v. Comptoir d'Escompte de Mulhouse, [19231 2 K. B. 630; Banque Internationale de Commerce de Petrograd v. Goukassow, [1923] 2 K. B. 682. These judgments were reversed by the House of Lords ([1925] A. C. 112; [1925] A. C. 150) on the ground that the Soviet nationalization decrees were not intended to terminate the banks' existence, certainly in England, and on the ground of estoppel. Effect was given to the decrees as decrees.

²² 168 U. S. 250,18 S. Ct. 83 (1897).

²³ Chief Justice Fuller's dicta were not always as sound as this. Cf. In re Cooper, 143 U. S. 472, 12 S. Ct. 453 (1892). Circuit Judge Wallace's opinion below in Underhill v. Hernandez, 65 F. 577 (C. C. A. 2d, 1895), is believed to be even more effective and clear than that of the Supreme Court.

²⁴ Oetjen v. Central Leather Co., 246 U. S. 297, 38 S. Ct. 309 (1918), this JOTJBNAL, Vol. 12 (1918), 421; cf. Terrazas v. Holmes, 115 Tex. 32, 275 S. W. 392 (1925); Princess Paley Olga v. Weisz, [1929] 1 K. B. 718.

²⁵ 87 N. J. L. 552, 94 A. 789 (1915).

²⁶ [1921] 1 K. B. 456; pending appeal, the Soviets were recognized, whereupon the Court of Appeal reversed the King's Bench. [1921] 3 K. B. 532.

²⁷ Judge Goddard's opinion in Banque de Prance v. Equitable Trust Co., 33 F. (2d) 202. 206 (D. C. N. Y. 1929), seems sound: “Justice requires that effect should be given by our courts, even though we do not recognize the Russian Government, to those acts in Russia upon which the rights of our citizens depend, provided that in so doing our judicial department does not encroach upon or interfere with the political branch of our government.” Just what was meant by the proviso is uncertain; if it became material, it ought carefully to be scrutinized. The courts are not instruments of executive policy.

²⁸ Dictum in Sokoloff v. National City Bank, 239 N. Y. 158,145 N. E. 917 (1924). Judge Cardozo was careful to add: “It would be hazardous, none the less, to say that a rule so comprehensive and so drastic is not subject to exceptions under pressure of some insistent claim of policy or justice.”

²⁹ United States v. Rice, 4 Wheat. 246 (U. S. 1819); MacLeod v. United States, 229 U. S. 416, 428, 33 S. Ct. 955 (1913). See the Mazatlan and Bluefields cases described in Moore's Dig. I, 49 et seq. Cf.Thorington v. Smith, 8 Wall. 1, 9 (U. S. 1869).

³⁰ This is true also of the acts of recognized governments. Though admittedly illegal, as were, it is submitted, the decisions of the British prize courts acting under Orders in Council in the late war, they conferred titles recognized in the courts of countries which protested the decisions and Orders in Council as in violation of international law. But where the ship was not within the jurisdiction of the prize court, its decision was not entitled to respect as a muniment of title. The Flad Oyen, 1 C. Rob. 135 (1799); Rose t>. Himely, 4 Cranch, 241 (1808).