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III. Its public domain, and private rights of property. Chap. II. IV. As to wrongs or injuries done to the government or citizens of another State.

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I. Treaties are divided by text writers into personal Treaties. and real. The former relate exclusively to the persons of the contracting parties, such as family alliances and treaties guaranteeing the throne to a particular sovereign and his family. They expire, of course, on the death of the king or the extinction of his family. The latter relate solely to the subject-matters of the convention, independently of the persons of the contracting parties. They continue to bind the State, whatever intervening changes may take place in its internal constitution, or in the persons of its rulers. The State continues the same, notwithstanding such change, and consequently the treaty relating to national objects remains in force so long as the nation exists as an independent State. The only exception to this general rule, as to real treaties, is where the convention relates to the form of government itself, and is intended to prevent any such change in the internal constitution of the State (7).

The correctness of this distinction between personal and real treaties, laid down by Vattel, has been questioned by more modern public jurists as not being logically deduced from acknowledged principles. Still it must be admitted that certain changes in the internal constitution of one of the contracting States, or in the person of its sovereign, may have the effect of annulling pre-existing 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

(1) Vattel, Droit des Gens, liv. ii. ch. 12, §§ 183-197.

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means of a change in the social organisation 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 foreseen this change, the treaty ceases to be obligatory upon him.

On the separation of Belgium and Holland, the United States deemed themselves justified in withdrawing from an agreement to accept the King of the Netherlands as umpire on the north-east boundary question. When Texas joined the United States, France and England intimated that she did not thereby cease to be bound by her treaties with them (m); and a like intimation was given by Great Britain to France respecting Tunis, on the French occupation of that country (n).

The United States regards its treaties with Algiers as terminated by the French conquest of 1831, its treaties with Hanover as terminated in consequence of incorporation with Prussia in 1866, those with Nassau as terminated for the same reason in 1846, and its treaties with the Two Sicilies as terminated by absorption of that kingdom into Italy (o).

II. As to public debts-whether due to or from the revolutionised State-a mere change in the form of 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 authorised agents, for its public use, the nation continues liable for them, notwithstanding the change in its internal constitution (p). 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 (4).

(m) Wheaton, by Dana, note 17, p. 48; Lord Aberdeen to Mr. Eliot, 3rd Dec. 1845.

(n) Parl. Papers, Tunis, Nos. 3 and 7 (1881); see p. 63, infra.

(0) Wharton, Dig. pp. 63, 64.

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

2, 3. But see Hüber, Die Staaten successionen, and the report of the commission appointed by the British Government to enquire into the various concessions granted by the Transvaal Government. Parl. Papers, South Africa, 1901 [c. 623].

(7) Heffter, Das Europäische Völkerrecht, 24. Bona non intelliguntur nisi deducto ære alieno.

Chap. II.

Most treaties relating to the transfer of territory contain a clause providing for the payment of the debts of the territory ceded. Thus, $30a. when Holland and Belgium were united in 1814, it was provided that Payment of the new Kingdom of the Netherlands should be responsible for the debts of debts of both countries (r). When Schleswig, Holstein, and Lauen- territory ceded by burg were ceded by Denmark, in 1864, to Austria and Prussia, it treaty. was agreed between the parties that the debts of the Danish monarchy should be divided between Denmark and the ceded provinces, in proportion to the population of the two parts (s). On the acquisition by Italy of the Papal States, in 1864, and of Venice in 1866, she, in each case, took upon herself the debts of those provinces (t). In some cases territory has been transferred free from the general debt of the State it belonged to. This was the case when Saxe-Cobourg ceded Lichtenburg to Prussia in 1834, and when Austria, Sardinia, and some of the other Italian States, rectified their boundaries in 1844 (u). On the cession of Alsace and Lorraine by France, in 1871, Germany refused to take upon herself any share of the French national debt (x). By the treaty of Berlin, 1878, the portions of Turkish territory given to Servia and Montenegro were charged with a share of the Turkish debt. The portions given to Russia were not so charged, being taken as part payment of a war indemnity demanded by Russia from Turkey (y). After the war of 1898 the United States declined to assume any part of the Cuban debt, acting on the principle that, as incorporation of Cuba within the Union was not intended, they merely occupied the temporary position of a liquidator.

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and private rights of

III. As to the public domain and private rights of pro- Public domain perty. If the revolution be successful, and the internal change in the constitution of the State is finally confirmed property. 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 govern

(r) Art. VI. of the Treaty. See Hertslet, Map of Europe, vol. i. p. 38. (*) Annual Reg. 1864, P. 236.

(t) Hertslet, Map of Europe, pp. 1628, 1721.

(u) Hertslet, Map of Europe, vol ii. pp. 948 and 1052.

(x) Calvo, vol. iii. p. 244.

(y) Parl. Papers, Turkey (No. 44), 1878, and Turkey (No. 22), 1878.

Part I.

ment 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 (2). 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 sovereign on his restoration, although they were the acts of him who is considered by the restored sovereign as an usurper (a). On the other hand, it seems that such alienations of public or private property to the subjects of the

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

(a) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 14, § 16.

State, may be annulled or confirmed, as to their internal Chap. II. 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 (b).

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 (c).

"I apprehend it," said Vice-Chancellor James, "to be clear public universal law, that any government which de facto succeeds to any 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

(b) Klüber, Droit des Gens, sec. ii. ch. 1, § 258.

(c) Conversations Lexikon, art. Domainen-verkauf. Heffter, Das Euro

W.

päische Völkerrecht, § 188. Kluber,
offentliches Recht des deutschen Bundes,
§ 169. Rotteck und Welcker, Staats-
Lexikon, art. Domainen-kaufer.

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$ 31a. Opinion of James, V.C.

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