Sivut kuvina

4. The former Germanic Empire was composed of a great number of States, which, although enjoying what was called territorial superiority, (Landeshoheit,) could not be considered as completely sovereign, on account of their subjection to the legislative and judicial power of the emperor and the empire. These have all been absorbed in the sovereignty of the States composing the present Germanic Confederation, with the exception of the Lordship of Kniphausen, on the North Sea, which still retains its former feudal relation to the Grand Duchy of Oldenburg, and may, therefore, be considered as a semi-sovereign State.1

5. Egypt had been held by the Ottoman Porte, during the dominion of the Mamelukes, rather as a vassal State than as a subject province. The attempts of Mehemet Ali, after the destruction of the Mamelukes, to convert his title as a princevassal into absolute independence of the Sultan, and even to extend his sway over other adjoining provinces of the empire, produced the convention concluded at London the 15th July, 1840, between four of the great European powers, Austria, Great Britain, Prussia, and Russia, to which the Ottoman Porte acceded. In consequence of the measures subsequently taken by the contracting parties for the execution of this treaty, the hereditary Pashalick of Egypt was finally vested by the Porte in Mehemet Ali, and his lineal descendants, on the payment of an annual tribute to the Sultan, as his suzerain. All the treaties and all the laws of the Ottoman Empire were to be applicable to Egypt, in the same manner as to other parts of the empire. But the Sultan consented that, on condition of the regular payment of this tribute, the Pasha should collect, in the name and as the delegate of the Sultan, the taxes and imposts legally established, it being, moreover, understood that the Pasha should defray all the expenses of the civil and military administration; and that the military and naval force maintained by him should always be considered as maintained for the service of the State.2

Tributary States, and States having a feudal relation to each other, are still considered as sovereign, so far as their sovereignty is not affected by this relation.

§ 14. Tributary and vassal

Thus, States.

1 Heffter, Das Europäische Völkerrecht, § 19.
2 Wheaton, Hist. Law of Nations, pp. 572-583.

it is evident that the tribute, formerly paid by the principal maritime powers of Europe to the Barbary States, did not at all affect the sovereignty and independence of the former. So also the King of Naples had been a nominal vassal of the Papal See, ever since the eleventh century; but this feudal dependence, abolished in 1818, was never considered as impairing the sovereignty of the kingdom of Naples.1


Porte and

the Barbary

Relations The political relations between the Ottoman Porte between the and the Barbary States are of a very anomalous character. Their occasional obedience to the commands States. of the Sultan, accompanied with the irregular payment of tribute, does not prevent them from being considered by the Christian powers of Europe and America as independent States, with whom the international relations of war and peace are maintained, on the same footing as with other Mohammedan sovereignties. During the Middle Age, and especially in the time of the Crusades, they were considered as pirates:

"Bugia ed Algieri, infami nidi di corsari,"

as Tasso calls them. But they have long since acquired the character of lawful powers, possessing all those attributes which distinguish a lawful State from a mere association of robbers.2 "The Algerines, Tripolitans, Tunisians, and those of Salee," says Bynkershoek, "are not pirates, but regular organized societies, who have a fixed territory and an established government, with whom we are alternately at peace and at war, as with other nations, and who, therefore, are entitled to the same rights as other independent States. The European sovereigns often enter into treaties with them, and the States-General have done it in several instances. Cicero defines a regular enemy to be: Qui habet rempublicam, curiam, ærarium, consensum et concordiam civium, rationem aliquam, si res ità tulisset, pacis et fæderis. (Philip. 4, c. 14.) All these things are to be found among the barbarians of Africa; for they pay the same regard to treaties of peace and alliance that other nations do, who generally attend more to their convenience than to their engagements. And if they should not observe the faith of treaties with the most scrupu

1 Ward's Hist. of the Law of Nations, vol. ii. p. 69.

2 Sir L. Jenkins's Works, vol. ii. p. 791. Robinson's Adm. Rep. vol. iv. p. 5. The Helena.

lous respect, it cannot be well required of them; for it would be required in vain of other sovereigns. Nay, if they should even act with more injustice than other nations do, they should not, on that account, as Huberus very properly observes, (De Jure Civitat. l. iii. c. 5, § 4, n. ult.) lose the rights and privileges of sovereign States."1

The political relation of the Indian nations on this continent towards the United States, is that of semi-sovereign States, under the exclusive protectorate of another power. Some of these savage tribes have totally extinguished their national fire, and submitted themselves to the laws of the States within whose territorial limits they reside; others have acknowledged, by treaty, that they hold their national existence at the will of the State; others retain a limited sovereignty, and the absolute proprietorship of the soil. The latter is the case with the tribes to the west of Georgia.2

Thus the Supreme Court of the United States determined, in 1831, that, though the Cherokee nation of Indians, dwelling within the jurisdictional limits of Georgia, was not a "foreign State" in the sense in which that term is used in the Constitution, nor entitled, as such, to proceed in that Court against the State of Georgia, yet the Cherokees constituted a State, or a distinct political society, capable of managing its own affairs and governing itself, and that they had uniformly been treated as such since the first settlement of the country. The numerous treaties made with them by the United States recognize them as a people capable of maintaining the relations of peace and war, and responsible in their political capacity. Their relation to the United States was nevertheless peculiar. They were a domestic dependent nation; their relation to us resembled that of a ward to his guardian; and they had an unquestionable right to the lands they occupied, until that right should be extinguished by a voluntary cession to our government.3

The same decision was repeated by the Supreme Court, in another case, in 1832. In this case, the Court declared that the British crown had never attempted, previous to the Revolution,


1 Bynkershoek, Quæst. Jur. Pub. lib. i.
2 Cranch's Rep. vol. vi. p. 146. Fletcher v. Peck.

3 Peters's Rep. vol. v. p. 1. The Cherokee Nation v. The State of Georgia

to interfere with the national affairs of the Indians, farther than to keep out the agents of foreign powers, who might seduce them into foreign alliances. The British government purchased the alliance and dependence of the Indian nations by subsidies, and purchased their lands, when they were willing to sell, at the price they were willing to take, but it never coerced a surrender of them. The British crown considered them as nations, competent to maintain the relations of peace and war, and of governing themselves under its protection. The United States, who succeeded to the rights of the British crown, in respect to the Indians, did the same, and no more; and the protection stipulated to be afforded to the Indians, and claimed by them, was understood by all parties as only binding the Indians to the United States, as dependent allies. A weak power does not surrender its independence and right to self-government, by associating with a stronger and taking its protection. This was the settled doctrine of the Law of Nations; and the Supreme Court therefore concluded and adjudged, that the Cherokee nation was a distinct community, occupying its own territory, with boundaries accurately described, within which the laws of Georgia could not rightfully have any force, and into which the citizens of that State had no right to enter but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of Congress.1 (a)

1 Kent's Comment. on American Law, vol. iii. p. 383.

(a) [The native tribes, who were found on the American continent at the time of its discovery, have never been acknowledged or treated as independent nations by the European governments, nor regarded as the owners of the territories they respectively occupied. On the contrary, the whole continent was divided and parcelled out, and granted by the governments of Europe, as if it had been vacant and unoccupied land, and the Indians continually held to be and treated as subject to their dominion and control. The United States have maintained the doctrines upon this subject which had been previously established by other nations, and insisted upon the same powers and dominion within their territory. It is too firmly and clearly established to admit of dispute, that the Indian tribes residing within the territorial limits of the United States are subject to their authority; and, where the country occupied by them is not within the limits of one of the States, Congress may, by law, punish any offence committed there, no matter whether the offender be a white man or an Indian. Howard's Rep. vol. iv. p. 572. The United States v. Rogers. The same rules, applicable to the aborigines elsewhere on the American continent, are supposed to govern in

gle or united

States may be either single, or may be united toge-15. Sinther under a common sovereign prince, or by a federal States. compact.

sonal union

under the

same soV

1. If this union under a common sovereign is not an § 16. Perincorporate union, that is to say, if it is only personal in the reigning sovereign; or even if it is real, yet if the different component parts are united with a perfect equality of rights, the sovereignty of each State remains unimpaired.1


Thus, the kingdom of Hanover was formerly held by the king of the united kingdom of Great Britain and Ireland, separately from his insular dominions. Hanover and the United Kingdom were subject to the same prince, without any dependence on each other, both kingdoms retaining their respective national rights of sovereignty. It is thus that the King of Prussia is also sovereign prince of Neufchatel, one of the Swiss Cantons; which does not, on that account, cease to maintain its relations with the Confederation, nor is it united with the Prussian monarchy.

So, also, the kingdoms of Sweden and Norway are united under one crowned head, each kingdom retaining its separate

the case of the Mosquito Indians, within the territorial limits of the republic of Nicaragua; to whom the United States deny any claim of sovereignty, or any other title than the Indian right of occupancy, to be extinguished at the will of the discoverer, though a species of undefined protectorate has, several times, been claimed over them by Great Britain. This subject has given rise to much discussion, on account of the contiguity of the territory to the proposed inter-oceanic communication; to promote which a Convention was concluded between the United States and Great Britain, on 19th April, 1850. In that Convention there is no reference to the Mosquito protectorate; though, by a subsequent agreement between these powers, dated 30th April, 1852, to be proposed to the acceptance of the Mosquito king, as well as of Nicaragua and Costa Rica, there is a reservation of a district therein described to these Indians. But Nicaragua refused to enter into the arrangement, and protested against all foreign intervention in her affairs. Congressional Globe, 1852-3, vol. xxvi. p. 268. Id. vol. xxvii. p. 252, 286. U. S. Statutes at Large, vol. viii. p. 174. Annuaire des Deux Mondes, 1852-3, p. 741. Appendix, p. 922. See, also, for negotiations with Great Britain, subsequent to the Inter-Oceanic Treaty, Cong. Doc. 32d Cong. 2d Sess. Senate Ex. Doc. Nos. 12 and 27. Id. 33d Cong. 1st Sess. Senate, Ex. Doc. Nos. 8 and 13.]

1 Grotius, de Jur. Bel. ac. Pac. lib. ii. cap. 9, §§ 8, 9. Kluber, Droit des Gens Moderne de l'Europe, Part. I. cap. 1, § 27. Heffter, Das Europäische Völkerrecht, § 20.

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