Iacta alea est.
Those following the thread with open minds and interested in the facts of diplomatic recognition of the Republic of Texas may well be aware, or, if not, be interested to know, that – as a matter of international law, in the mid C19 as today – the entering into of treaties (and particularly of commerce-and-navigation, if not FCN treaties (friendship-commerce-and-navigation)) and (I cannot express this strongly enough)
the exchange of diplomats constituted formal recognition between Westphalian-system states.
In June of 1824, the Rt Hon. Sir James Mackintosh, MP for Knaresborough, one of the leading experts on international law of the time, had a passage at arms in the Commons with Canning, the then Foreign Secretary. It concerned recognition of the South American republics which had established themselves in the Bolivarian revolutions. He said,
It is not by formal stipulations or solemn declarations that we are to recognize the [South] American states; but by measures of practical policy which imply that we acknowledge their independence. Our recognition is virtual. We are called upon to treat them as independent; to establish with them the same relations and the same intercourse which we are accustomed to maintain with other governments; to deal with them in every respect as commonwealths entitled to admission into the great society of civilized states. The most conspicuous part of such a practical recognition, is the act of sending and receiving diplomatic agents. It implies no guarantee, no alliance, no aid, no approbation of the successful revolt; no intimation of an opinion concerning the justice or injustice of the means by which it has been accomplished. These are matters beyond our jurisdiction. It would be usurpation in us to sit in judgement upon them. As a state, we can neither condemn nor justify revolutions which do not affect our safety and are not amenable to our laws. We deal with the authorities of new states, on the same principles and for the same object as with those of old. We consider them as governments actually exercising authority over the people of a country, with whom we are called upon to maintain a regular intercourse by diplomatic agents for the interests of Great Britain and for the security of British subjects.
*** … An independent state alone can appoint consuls. An independent state only can receive consuls. We have not only sent consuls, but commissioners. What is their character? can it be any other than that of an envoy with a new title? Every agent publicly accredited to a foreign government, and not limited by his commission to commercial affairs, must, in reality, be a diplomatic minister, whatever may be his official name. [HC Deb 15 June 1824 vol 11 cc1344-406]
He went on to urge that diplomatic envoys of a higher rank than consuls – who were at the time commercial consuls only – be sent, to formalize British recognition, and who were more than commissioners, so as to remove all doubt. It was agreed by the House and accepted by the Government, and was in fact the law of nations than as now, that sending not merely a commercial consul, but a chargé and consul-general (or any higher rank of diplomatic envoy), and establishing and accepting in return legations, not mere consular appointments, completed the act of diplomatic recognition beyond quibble or question. Due to the Bonapartist invasion of Spain, the Peninsular War, and the active hostilities between Spain, a British ally against Bonaparte, and the South American rebels, HM Government had previously not recognized the Bolivarian republics. But this was not a permanent stance, and of course Britain did recognize them afterward.
In the case of Texas, the parallel is exact. Legations were mutually established; Elliot was sent to Texas accredited as chargé and consul-general, an actual diplomatic post; his Texan counterparts were received equally as envoys; treaties – the Treaty of Commerce and Navigation with Great Britain (November 13, 1840), ratified by Queen Victoria, May 26, 1842; the Treaty of Commerce and Navigation with Great Britain, May 26, 1842; the exchange of ratifications, Treaty of Commerce and Navigation with Great Britain (November 13, 1840), June 28, 1842; the Convention Relative to Public Debt, with Great Britain, November 14, 1840; the exchange of ratifications, Convention Relative to Public Debt, with Great Britain, (November 14, 1840), June 28, 1842; the Treaty for the Suppression of the African Slave Trade, with Great Britain, November 16, 1840 – were entered into. (I note that the Texas State Library and Archives Commission, repository of these records, is quite clear on the matter: “Treaties between the Republic of Texas and other nations were created as the most formal and official records of diplomacy, the ultimate product so to speak. These records are signed copies of treaties between the Republic of Texas and other countries - France, Great Britain, the Netherlands, the Hanseatic League, and the United States - dating 1838-1844. Most of the treaties concern amity, navigation, and commerce”; “Following the defeat of the Mexican Army at San Jacinto and the ratification of the Constitution of 1836, the Republic of Texas proceeded to treat for recognition by other nations and for the exchange of diplomatic representatives. This resulted in the signing of treaties between the Republic of Texas and France, Great Britain, the Netherlands, the Hanseatic League, and the United States, primarily for amity, navigation, and commerce. One treaty with Great Britain was for the supression of the African slave trade. Treaties between the Republic of Texas and other nations were created as the most formal and official records of diplomacy.”) The non-recognition of 1836 was not permanent, and by 1840 diplomatic relations at a chargé level, and bilateral treaties, including of commerce-and-navigation – and therefore, as a matter of law, diplomatic recognition – had been established.
This is the law; and these are the facts.
And now, with regret, I must – for the first time in my experience here, the length of which I am, apparently, commanded not to mention by those ... policing my tone – be about the sorry business of reluctantly laying certain matters before the moderators.
Iacta alea est; anerrhiphtho kybos.