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 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 difficult 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 (a). 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, recognised 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 (a) Puffendorf, de Jur. Nat. et Gent. lib. viii. cap. 12, §§ 1—3. Vattel, Droit des Gens, liv. i. chap. 21, §§ 260, 261. sovereign on his restoration, although they were the acts of him who is considered by the restored sovereign as an usurper (b). 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 (c). 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 (d). § 31a. "I apprehend it," said Vice-Chancellor James, "to be clear public Opinion of universal law, that any government which de facto succeeds to any James, V.C. (b) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 14, § 16. (e) Klüber, Droit des Gens, sec. ii. ch. 1, § 258. (d) Conversations Lexikon, art. Do mainen-verkauf. Heffter, Das Euro- $ 32. Wrongs and injuries. other government, whether by revolution or restoration, conquest or reconquest, succeeds to all the public property, to everything in the nature of public property, and to all rights in respect of the public property of the displaced power, whatever may be the nature or origin of the title of such displaced power. This right of succession is a right not paramount, but derived through the suppressed authority, and can only be enforced in the same way, and to the same extent, and subject to the same correlative obligations and rights, as if that authority had not been suppressed, and was itself seeking to enforce it" (e). 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 rigour 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, 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 (e) [U. S. v. McRae, L. R. 8 Eq. 75; Terrett v. Taylor, 9 Cranch, 50; Kelly v. Harrison, 2 Johnson's Cases, 29; Calvin's case, 7 Coke Rep. 27; Strother v. Lucas, 12 Peters, 410; King of the Two Sicilies v. Wilcox, 1 Simons, N. S. 302; Republic of Peru v. Peruvian Guano Co., 36 Ch. D. 489; Republic of Peru v. Dreyfus, 38 Ch. D. 348; Wharton Dig. §§ 5, 5a; Nelson, Private International Law, pp. 406, 407, 408.] of indemnities concluded between the American and Neapolitan governments. any § 33. nation Sovereign States de A Sovereign State is generally defined to be or people, whatever may be the form of its internal con- fined. stitution, which governs itself independently of foreign powers (f). 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. "By a Sovereign State, we mean," says Prof. Montague Bernard (g), "a community or number of persons permanently organised under a sovereign government of their own; and by a sovereign government we mean a government, however constituted, which exercises the power of making and enforcing law within a community, and is not itself subject to any superior government. These two factors, one positive, the other negative-the exercise of power, and the absence of superior control-compose the notion of sovereignty, and are essential to it." § 33a. sovereign 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. $ 34. States which are thus dependent on other States, in Semi-soverespect to the exercise of certain rights, essential to the reign States. (f) Vattel, Droit des Gens, liv. i. chap. 1, § 4. W. (9) [Neutrality of Great Britain during American Civil War, p. 107; see Cobbett, L. C. p. 4.] E perfect external sovereignty, have been termed semisovereign States (h). Thus the city of Cracow, in Poland, with its territory, was declared by the Congress of Vienna to be a perpetually free, independent, and neutral State, under the protection of Russia, Austria, and Prussia (i). By the final act of the Congress of Vienna, Art. 9, the three great powers, Austria, Russia, and Prussia, mutually engaged to respect, and cause to be respected, at all times, the neutrality of the free city of Cracow and its territory; and they further declared that no armed force should ever be introduced into it under any pretext whatever. It was at the same time reciprocally understood and expressly stipulated that no asylum or protection should be granted in the free city or upon the territory of Cracow to fugitives from justice, or deserters from the dominions of either of the said high powers, and that upon a demand of extradition being made by the competent authorities, such individuals should be arrested and delivered up without delay under sufficient escort to the guard charged to receive them at the frontier (k). By the convention concluded at Paris on the 5th of November, 1815, between Austria, Great Britain, Prussia, and Russia, it is declared (Art. 1) that the islands of Corfu, Cephalonia, Zante, St. Maura, Ithaca, Cerigo and Paxo, with their dependencies, shall form a single, free, and independent State, under the denomination of the United States of the Ionian Islands. The second article provides that this State shall be placed under the immediate and exclusive protection of His Majesty the King of the United Kingdom of Great Britain and Ireland, his heirs and successors. By the third article it is pro (h) Klüber, Droit des Gens moderne de l'Europe, § 24. Heffter, Das Europäische Völkerrecht, § 19. (i) Acte du Congrès de Vienne du 9 Juin, 1815, Arts. 6, 9, 10. (k) Martens, Nouveau Recueil, tome ii. p. 386. Klüber, Acten des Wiene Congresses, Band V. § 138. By a Convention, signed at Vienna, Nov. 6, 1846, between Russia, Austria, and Prussia, the city of Cracow was annexed to the Empire of Austria. The governments of Great Britain, France, and Sweden protested against this proceeding as a violation of the Federal act of 1815. [See Hertslet, Map of Europe, vol. ii. pp. 1065, 1073.] |