Sivut kuvina

effect of annulling preëxisting treaties between their respective governments. The obligation of treaties, by whatever denomination they may be called, is founded, not merely upon the contract itself, but upon those mutual relations between the two States which may have induced them to enter into certain engagements. Whether the treaty be termed real or personal, it will continue so long as these relations exist. The moment they cease to exist, by means of a change in the social organization of one of the contracting parties, of such a nature and of such importance as would have prevented the other party from entering into the contract had he forseen this change, the treaty ceases to be obligatory upon him.


II. As to public debts-whether due to or from the revolutionized Statea mere change in the form of debts. government, or in the person of the ruler, does not affect their obligation. The essential form of the State, that which constitutes it an independent community, remains the same; its accidental form only is changed. The debts being contracted in the name of the State, by its authorized agents, for its public use, the nation continues liable for them, notwithstanding the change in its internal constitution. The new government succeeds to the fiscal rights, and is bound to fulfil the fiscal obligations of the former government.

It becomes entitled to the public domain and other property of the State, and is bound to pay its debts previously contracted.2 (a)

1 Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 9, § 8, 1-3. Puffendorf, de Jur. Nat. et Gent. lib. viii. cap. 12, §§ 1, 2, 3.

2 Heffter, Das Europäische Völkerrecht, § 24. Bona non intelliguntur nisi deducto ære alieno.

(a) [The obligations incurred by the United States towards the creditors of Texas, by her annexation and admission, in 1845, as a member of the Union, has been deemed a case for the application of the rule in the text, though, possibly, modified by the consideration that, except so far as her Federal duties interfered, Texas retained her internal sovereignty. As regards foreign States, however, there was a complete merger. By the treaty negotiated between the United States and Texas, but which was rejected by the Senate, in 1844, the United States assumed the payment of the debts of Texas, to an amount not exceeding $10,000,000, to be paid, however, almost exclusively out of the proceeds of the sales of her public lands, and President Tyler, in referring to the subject, in his annual message, December, 1844, says, "We could not with honor

main and

private rights of property.

Public do- III. As to the public domain and private rights of property. If the revolution be successful, and the internal change in the constitution of the State is finally confirmed by the event of the contest, the public domain passes to the new government; but this mutation is not necessarily attended with any alteration whatever in private rights of property.

It may, however, be attended by such a change: it is competent for the national authority to work a transmutation, total or partial, of the property belonging to the vanquished party; and if actually confiscated, the fact must be taken for right. But to work such a transfer of proprietary rights, some positive and unequivocal act of confiscation is essential.

If, on the other hand, the revolution in the government of the State is followed by a restoration of the ancient order of things, both public and private property, not actually confiscated, revert. to the original proprietor on the restoration of the legitimate

take the lands, without assuming the full payment of all incumbrances on them." By the resolution of Congress, 1st March, 1845, proffering annexation to Texas, and admission as a State on certain conditions, which were accepted by her, it is provided that the State of Texas, after ceding all public buildings, fortifications, and other property pertaining to the public defence, shall retain all the public funds, debts, taxes, and dues of every kind due the Republic of Texas, and all vacant and unappropriated lands lying within her limits, to be applied to the payment of the debts and liabilities of the Republic, and the residue, after discharging those debts and liabilities to be disposed of as the State may direct; but in no event were those debts and liabilities to become a charge upon the government of the United States. Notwithstanding, however, this disclaimer of liability, by an act of Congress, of 9th of September, 1850, on a cession to the United States of a portion of the territory of Texas and a further relinquishment by her of all claim upon the United States, for her debts or for indemnity on account of the surrender of the property, referred to in the resolution of annexation, the United States agreed to pay to the State of Texas $10,000,000 in consideration of the establishment of boundaries, cessions of claims to territory and relinquishment of claims, but no more than $5,000,000 were to be paid, till the creditors holding bonds, on which the duties for imports were pledged, should specially release all claims against the United States on account of such bonds. By the annexation and admission into the Union of Texas, all subsequent duties on imports were, of course, payable into the Federal Treasury; and this was understood to be the ground for the distinction between the creditors made in the act. Annual Reg. 1844, p. 305; U. S. Statutes at Large, vol. v. p. 797; vol. viii. p. 446; Cong. Globe, 1849-50; Appx. p. 1564.]

government, as in the case of conquest they revert to the former owners, on the evacuation of the territory occupied by the public enemy. The national domain, not actually alienated by any intermediate act of the State, returns to the sovereign along with the sovereignty. Private property, temporarily sequestered, returns to the former owner, as in the case of such property recaptured from an enemy in war on the principle of the jus postliminii.

But if the national domain has been alienated, or the private property confiscated by some intervening act of the State, the question as to the validity of such transfer becomes more diffi cult of solution.

Even the lawful sovereign of a country may, or may not, by the particular municipal constitution of the State, have the power of alienating the public domain. The general presumption, in mere internal transactions with his own subjects, is, that he is not so authorized. But in the case of international transactions, where foreigners and foreign governments are concerned, the authority is presumed to exist, and may be inferred from the general treaty-making power, unless there be some express limitation in the fundamental laws of the State. So, also, where foreign governments and their subjects treat with the actual head of the State, or the government de facto, recognized by the acquiescence of the nation, for the acquisition of any portion of the public domain or of private confiscated property, the acts of such government must, on principle, be considered valid by the lawful sovereign on his restoration, although they were the acts of him who is considered by the restored sovereign as an usurper.2 On the other hand, it seems that such alienations of public or private property to the subjects of the State, may be annulled or confirmed, as to their internal effects, at the will of the restored legitimate sovereign, guided by such motives of policy as may influence his counsels, reserving the legal rights of bona fidei purchasers under such alienation to be indemnified for ameliorations.3

1 Puffendorf, de Jur. Nat. et Gent. lib. viii. cap. 12, §§ 1-3. Vattel, Droit des Gens, liv. i. chap. 21, §§ 260-261.

2 Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 14, § 16.

3 Kluber, Droit des Gens, sec. ii. ch. 1, § 258.

Where the price or equivalent of the property sold or exchanged has accrued to the actual use and profit of the State, the transfer may be confirmed, and the original proprietors indemnified out of the public treasury, as was done in respect to the lands of the emigrant French nobility, confiscated and sold during the revolution. So, also, the sales of the national domains situate in the German and Belgian provinces, united to France during the revolution, and again detached from the French territory by the treaties of Paris and Vienna in 1814 and 1815, or in the countries composing the Rhenish confederation in the kingdom of Italy, and the Papal States, were, in general, confirmed by these treaties, by the Germanic Diet, or by the acts of the respective restored sovereigns. But a long and intricate litigation ensued before the Germanic Diet, in respect to the alienation of the domains in the countries composing the kingdom of Westphalia. The Elector of Hesse Cassel and the Duke of Brunswick refused to confirm these alienations in respect to their territory, whilst Prussia, which power had acknowledged the King of Westphalia, also acknowledged the validity of his acts in the countries annexed to the Prussian dominions by the treaties of Vienna.1

IV. As to wrongs or injuries done to the government or citizens of another State;-it seems, that, on strict principle, the nation continues responsible to other States for the damages incurred for such wrongs or injuries, notwithstanding an intermediate change in the form of its government, or in the persons of its rulers. This principle was applied in all its rigor by the victorious allied powers in their treaties of peace with France in 1814 and 1815. More recent examples of its practical application have occurred in the negotiations between the United States and France, Holland, and Naples, relating to the spoliations committed on American commerce under the government of Napoleon and the vassal States connected with the French empire. The responsibility of the restored government of France for those acts of the preceding ruler was hardly denied by it, even during the reigns of the Bourbon kings of the elder branch,

Conversations Lexikon, art. Domainen-verkauf. Heffter, Das Europäische Völkerrecht, § 188. Kluber, offentliches Recht des deutschen Bundes, § 169. Rotteck und Welcker, Staats-Lexikon, art. Domainen-kaufer.

Louis XVIII. and Charles X.; and was expressly admitted by the present government (Louis Philippe's) in the treaty of indemnities concluded with the United States, in 1831. The application of the same principle to the measures of confiscation adopted by Murat in the kingdom of Naples was contested by the restored government of that country; but the discussions which ensued were at last terminated, in the same manner, by a treaty of indemnities concluded between the American and Neapolitan governments.

§ 12. So


A sovereign State is generally defined to be any nation or people, whatever may be the form of its States deinternal constitution, which governs itself independently of foreign powers.1


This definition, unless taken with great qualifications, cannot be admitted as entirely accurate. Some States are completely sovereign and independent, acknowledging no superior but the Supreme Ruler and Governor of the universe. The sovereignty of other States is limited and qualified in various degrees.


All sovereign States are equal in the eye of inter- Equality of national law, whatever may be their relative power. States. The sovereignty of a particular State is not impaired by its occasional obedience to the commands of other States, or even the habitual influence exercised by them over its councils. It is only when this obedience, or this influence, assumes the form of express compact, that the sovereignty of the State, inferior in power, is legally affected by its connection with the other. Treaties of equal alliance, freely contracted between independent States, do not impair their sovereignty. Treaties of unequal alliance, guarantee, mediation, and protection, may have the effect of limiting and qualifying the sovereignty according to the stipulations of the treaties.


States which are thus dependent on other States, in § 18. Semirespect to the exercise of certain rights, essential to the States. perfect external sovereignty, have been termed semi-sovereign States.2

1 Vattel, Droit des Gens, liv. i. chap. 1, § 4.

2 Klüber, Droit des Gens moderne de l'Europe, § 24. Heffter, Das Europäische Völkerrecht, § 19.

« EdellinenJatka »