to Greece, Venetia to Italy; in fact, an examination of the map of Europe will show constant and numerous changes of sovereignty, all of which have been recognized as valid by the powers to, and from, which the transfers have been made, by the inhabitants of the transferred territory, and by all the other powers of the world.1

§ 46. Consent of governed not required under international law. The principle of international law, that the consent of the inhabitants of territory, ceded by one sovereign power to another, is not required to validate the transfer, either of the territory or the sovereignty thereover, is as well established as the principle of municipal law, as it is generally administered, has been established, that the consent of a tenant is not necessary to enable the owner of the fee to dispose of it.

This rule has been recognized and adopted not only in the United States, but the world over. There was no plebiscite in Alsace or Lorraine when the borderland Frenchmen became the subjects of Germany. The French colonists of Quebec could not speak English when by the treaty of 1763 they were transformed into British subjects. The Spanish and native population of Cuba and the Philippines were not consulted in 1762 or 1764.1

§ 45.

1 See the instances of transfer of territory referred to in notes to § 43, ante. § 46.

wishes of a population are to be consulted when the territory which they inhabit is ceded, has not yet been adopted into international law, and cannot be adopted into it until title by conquest has disappeared.'

"He cites the cessions of Savoy to France, the Ionian Islands to He Greece, Venetia to Italy, and other European cessions, and further says (p. 49):

1§ 1. Right of One Sovereign Power to Cede Territory to Another Sovereign Power.-This right is discussed in Hall's International Law, section 9, pages 47-50. defines it as follows (p. 47): "The rights of a state with respect to property consist in the power to acquire territory, .. in being entitled to peaceable possession and enjoyment of that which it has duly obtained, and in the faculty of using its property as it chooses and alienating it at will. .. The principle that the

"States being the sole international units, the inhabitants of a ceded territory, whether acting as an organized body or as unorgan ized mass of individuals, have no more power to confirm or reject the action of their state than is possessed by a single individual. An

847. The United States has never asked the consent of the inhabitants of ceded territory.-The United States has never asked the inhabitants of any of its purchased territory

act, on the other hand, done by the state as a whole is, by the very conception of a state, binding upon all the members of it.'

have even been mortgaged, and bought in thereafter, and that furthermore, it has been the custom 'to dispose of sovereignties and do

"The following is a citation from minions by deeds of gift and bean eminent authority:

"I need not dwell upon the right to transfer territory, or in other words, to put an end to all dominion over them, for acquisition on the part of one nation implies transfer, or end of dominion, by another.'-John Norton Pomeroy's Lectures on International Law, edited by Theo. S. Woolsey, Boston, 1886, p. 198.

"In Halleck's International Law, San Francisco edition, 1861, at page 125, the rule is stated:

quests.'"-From "Our Treaty with Spain," referred to in note under § 44 ante.

Professor Woolsey says:

"Sec. 54. There is a tendency, in quite recent times, to act, in international arrangements, upon the principle here stated, that the consent of the inhabitants of a ceded territory ought to be obtained. In the treaty of Prague of 1866 (see Append. ii., sub anno), it is provided that the rights of Austria to Schleswig-Holstein are ceded to Prussia, with the reservation that the inhabitants in northern Schleswig shall be united anew to Denmark, if they express the desire for it in a free vote.' (This, however, has never been taken.) Here, however, the Danish nationality of that part of the duchy was, without doubt, of weight, and of the more weight, as the Germans had insisted on the German nationality of both duchies in their contest with Denmark. In 1860 the Neapolitan prov

"A state being regarded in our law as a body politic or distinct moral being, naturally sovereign and independent, it is considered capable of the same rights, duties and obligations with respect to other states as individuals with respect to other individuals. Among the most important of these natural rights is that of acquiring, possessing, and enjoying property. . . . A sovereign has the same absolute right to dispose of its territorial, or rather public, prop-inces,—Sicily, the Marches, and erty, as it has to acquire such property.'

Umbria,- -were annexed to the kingdom of Italy in the same way "Halleck thinks that in some by direct and universal suffrage. cases the consent of the governed The decree of December 17, which is necessary before the transfer of declares the Neapolitan provinces allegiance can take place, but he to form thenceforth an integral part shows, however, that there are of the kingdom, is based on the numerous examples of treaties of submission of a plebiscitum to the sale, and cites a number of them people, on the proof that it was preon pages 128 and 129, and states sented to them and accepted, and on that in some instance territories | a law authorizing the government

to ratify the transfer. It has always acted on the basis that it had the right to acquire the territory if the other sovereign had the right to cede it. There was no plebiscite in 1803 in Louisiana, where the inhabitants were subjects of Spain, of France and of the United States, within the brief space of a single month. No consent was asked of the inhabitants of Florida in 1819, of the Mexicans in 1848 or 1853, or of the Alaska Indians or Russian colonists in 1867; no reason now exists why the consent of the inhabitants, Spanish or native, of the Philippines, Porto Rico or Guam, should be asked, expected, or in any manner regarded as requisite, to complete our title under the treaty of 1898.

Had the inhabitants of Louisiana refused their consent to the transfer of that province from Spain to France, or from France to the United States, would we have been forced to permit the mouth of the Mississippi, to obtain the control of which the purchase was made, to remain in the hands of a foreign power, and thus have lost, not only the territory we had paid for, but also all access to the sea, which was absolutely essential for our commercial salvation?

Had the inhabitants of Florida in 1819, as might possibly have been the case, insisted upon their consent being obtained,

any interference now known to international law in its disintegrating tendency, and would give rise to any amount of intrigue and unjust influence.

'to accept, and by royal decrees with another, would go beyond establish, the annexation to the state of those provinces of central and southern Italy in which there shall be manifested freely, by direct, universal suffrage, the will to become an integral part of the con- "In the Treaty of Turin, uniting stitutional monarchy,' of Italy. Savoy and Nice to France, the first In this way, doubtless, it was in- article provides that this union tended to turn a half right into a shall be effectuated without conwhole one, or to sanctify unjust straining the will of the inhabiconquest by popular consent. The tants, and that the governments of principle would be a good and the Emperor of the French and of beneficial one as between two the King of Sardinia will agree as states that such consent should be soon as possible as to the best necessary before a transfer of alle-means of estimating and certifying giance. But, to make a desire on the demonstrations of this will.' the part of the inhabitants of a (Martens, N. Rec. Gen. XVI. 2, 539. district a ground for interfering on Comp. App. ii., under 1859.) " their behalf to disconnect them Woolsey's Int. Law, pp. 63-65. from one state, and to connect them

had the tribes of Indians, and hordes of buccaneers composing the population of that colony of Spain objected to the strong arm of the United States being extended over them, and their consent had been required, not only would we never have been able to collect the indemnity due to us from Spain, and which was represented by the value of that cession; but, according to the doctrines announced two years ago by a minority in the Senate, we might still have a foreign power between our southern boundary and the Gulf of Mexico. The extension of our sovereignty from the western boundary of the Louisiana purchase to the Pacific might have been prevented in 1848, had it been necessary to obtain the consent of the then far scattered inhabitants of the ceded territory.

The same conditions prevail in regard to the territory ceded under the treaty of 1898. The legal principles are exactly the same; so far as they are concerned, the number of inhabitants, and their race, color and condition make no difference whatever.

§ 48. Impracticability of ascertaining consent.-The impracticability of ascertaining such consent after a ceding government has ceded, and the receiving government has accepted, territory, can be most plainly shown by assuming for a moment that such consent is required, and then ascertaining how the consent must be evidenced, and what the result would be if the inhabitants should not give their consent. It would probably be beyond the ability of any expert in municipal or international law to answer the following questions in regard to the recent acquisitions of the United States:

1. Whose consent is necessary; in this respect, bearing in mind that until the extension of our laws over the territory there is no basis for suffrage-men, women, children, black, white, Spanish, Chinese, native, all are alike-and also how can they express this consent? 2. In what manner, and under whose supervision, must this consent be expressed; in this respect, bearing in mind that one of the highest acts of sovereignty is permitting the exercise of suffrage, and controlling the manner in which it may be exercised? 3. What would be the effect of the expression in case it were not, as

must inevitably be the case, unanimous; taking into consideration whether or not any power exists under those circumstances, by which the majority could coerce a minority until after some law to that effect had been established? 4. In case the consent were withheld, who is to enforce law and order, and how could the United States avoid national responsibility for disorder if it should now withdraw and leave the peaceable inhabitants to their fate?

Of course it is simply a reductio ad absurdum to say that we must exercise over any territory the very highest acts of sovereignty in order to find out if we have the right to exercise any sovereignty whatever.

49. Special instances in which obtaining consent might be practicable.-There are, however, instances, as in the cases of Texas and Hawaii, where the inhabitants can express their consent, and the annexation can be made as the result of the voice and the wish of the inhabitants; it would be just as reasonable, however, to require that the inhabitants of the United States should be called upon to express, by a popular plebiscite, their acceptance of the annexation as to require the plebiscite of the other country, after the ruling powers, properly exercising sovereignty thereover, had consented to the annexation. Had the proposed annexations of Texas or Hawaii been rejected by a popular vote, they might have been prevented, although the author is not prepared to admit that such would have been the case if the ruling powers had assented thereto. Those annexations, however, were entirely different from the transfers of territory from sovereign powers that have been compelled to make the transfers either for reasons of political convenience or under duress of conquest; in such cases, of course, the refusal on the part of the inhabitants to assent to the transfer has no effect whatever except, as has been evidenced in the Philippine Islands, to place such of the non-consenting inhabitants who have attempted to express their dissent by force, in the category of insurgents.

§ 50. Restrictions on acquisitions of territory by European powers under "balance of power" theory. While international law places no restraint upon any sovereign power from acquiring territory, there have been some restric