Images de page
PDF
ePub

of two or more separate States into one, forming a new and distinct sovereignty.'

§ 25. As a general rule, a mere change in the form of Government, or in the person of the ruler, does not affect the duties and obligations of a State toward foreign nations. All treaties of amity, commerce, and real alliance, remain in force precisely as if no intervening change had taken place, except in cases where the compact relates to the form of Government itself, or to the person of the ruler in the nature of a guaranty. Public debts, whether due to or from the revolutionised State, are neither cancelled nor affected by any change in the constitution or internal Government of a State. So, also, of its public domain and right of property. If a revolution be successful, and a new constitution be established, the public domain and public property pass to the new Government. The State, on the other hand, remains responsible for the wrongs done to the Government or subjects of another State, notwithstanding any intermediate change in the form of its Government or in the persons of its rulers. These results flow necessarily from the principle that the identity of a State is preserved, notwithstanding the accidental changes in its internal constitution.2

§ 26. The dismemberment of a State, by the loss of a portion of its subjects and territory, does not affect its identity, whether such loss be caused by foreign conquest, or by the revolt and separation of a province. Such a change no more affects its rights and duties, than a change in its internal organisation, or in the person of its rulers. This doctrine applies to debts due to, as well as from, the State, and to its rights of property and its treaty obligations, except so far as such obligations may have particular reference to the revolted or dismembered territory or province.3

§ 27. The case is slightly different where one State is

1 Wildman, Int. Law, vol. i. p. 68; Grotius, De Jur. Bel. ac Pac. lib. iii. cap. ix. §§ 8, 9, 10; Heffter, Droit International, § 25.

2 Vattel, Droit des Gens, liv. ii. ch. xii. §§ 183-197; Mably, Du Droit Public, tome i. pp. 111, 112; D'Aguesseau, Euvres de M. le C., tome i. p. 493, 4; Montesquieu, l'Esprit des Lois, liv. xxvi. ch. xx.; Grotius, De fur. Bel. ac Pac. lib. ii. cap. ix. § 8; Tindall, Essay on the Laws of Nations, p. 12; Kent, Com. on Am. Law, vol. i. pp. 25, 26; Bynkershoek, Quæst. Fur. Pub. lib. ii. cap. x.; Heineccius, Elementa Juris Nat, et Gent. lib. ii. § 231.

3 Wheaton, Hist. Law of Nations, p. 546; Terrett et al. v. Taylor, 9

divided into two or more distinct and independent sovereignties. In that case, the obligations which had accrued to the whole, before the division, are (unless they have been the subject of a special agreement), rateably binding upon the different parts. This principle is established by the concurrent opinions of text-writers, the decisions of courts, and the practice of nations. It was incorporated into the treaty by which the modern kingdom of Belgium was established. Kent says: 'If a State should be divided with respect to territory, its rights and obligations are not impaired; and if they have not been apportioned by special agreement, those rights are to be enjoyed, and those obligations fulfilled, by all Cranch's Rep. p. 50; Calvin's Case, 7 Coke Rep. p. 27; Wildman, Int. Law, vol. i. p. 68.

In 1859, an insurrection broke out in that part of the Pope's dominions known as the Romagna or the Legations. Sardinian troops entered the territory, and encouraged the inhabitants in their resistance. The Sardinian Government nominated an Extraordinary Commissioner in Romagna, alleging that it was to prevent the national movement from leading to disorder. The late Cardinal Antonelli addressed a circular to the foreign courts, declaring this act to be not only a violation of neutrality, but in reality an active co-operation with the rebels on the part of the Sardinian Government. The late Emperor Napoleon, writing to the Pope, December 31, 1859, declared that the Powers cannot disown the incontestable rights of the Holy See to the Legations.' On the other hand, the assembly of Romagna formally cast off their allegiance to the Pope, asserting that, having in former centuries lived under their own statutes and laws, and in the beginning of the present century formed part of a civil kingdom, they were in 1815 placed under the temporal government of the Pope against their will; that they considered that government incompatible with Italian nationality, with civil equality and political liberty; that it had de facto abdicated its sovereignty by giving up its noblest prerogatives into the hands of Austrian generals, who for many years had held the civil and military governments of these provinces; and that the temporal government of the Pope is substantially and historically distinct from the spiritual government of the Church, which they would always respect.

In 1870, Signor Lanza and his colleagues persuaded Victor Emmanuel to occupy Rome, and on September 20 of that year a considerable Italian army appeared before the gates of Rome, under the pretext of affording protection to Pius IX. against revolutionary attacks. The Pope only made a formal resistance. After the ceremony of a plébiscite, or popular vote, Rome was declared part of the kingdom of Italy.

It is interesting to note that in June, 1866, a resolution was moved by the Congress of the United States that, as the Irish people and their friends in the States were moved by a patriotic purpose to assert the independence of Ireland, and as the active sympathies of the people of the United States were naturally with all men who struggled to achieve such ends, and as the British Government, against whom they were struggling, was entitled to no greater consideration from the United States as a nation than that demanded by the strict letter of international law, for the reason that, during the civil war

the parts in common.' Story says: 'It has been asserted, as a principle of common law, that the division of an empire creates no forfeiture of previously vested rights of property; and this principle is equally consonant with the common sense of mankind, and the maxims of eternal justice.' 1

§ 28. The converse of this rule is also generally true; that is, where several separate States are incorporated into a new sovereignty, the rights and obligations which had accrued to each one separately, before the incorporation, belong to, and are binding upon, the new State which is created by such incorporation. But the rule must be varied or modified to suit the nature of the union formed, and the character of the act itself of incorporation in each particular case. Thus, a distinction must be made between the mere union, or confederation of States, and the creation of a new sovereignty, or composite State. In the one case, the obligations would remain with the States originally separate, while in the other case, they would, as a general rule, be transferred from the constituent parts to the new body politic. But if, by the act of incorporation, and by the constitution of the composite State, the rights and obligations of the component parts were to remain with the States originally separate, it could hardly be contended that the new sovereignty had either acquired the one or incurred the other. What might be claimed or incurred, under a general rule of presumptive law, could of the United States, she, in effect, by her conduct repealed her neutrality laws, and as, when reparation was demanded for damages to the United States commerce, resulting from her wilful neglect to enforce the same, she arrogantly denied all responsibility, therefore they should repeal an Act approved April 20, 1818, entitled, 'An Act in addition to an Act for the punishment of certain crimes against the United States,' it being the neutrality law under which the President's proclamation against the Fenians was issued. This resolution was lost; and a substitute was moved that the President of the United States, in the opinion of Congress, should reconsider the policy which has been adopted by him as between the British Government and the Fenians, who were struggling for their independence; and that he should be requested to adopt as nearly as practicable the same course of procedure which was pursued by the Government of Great Britain during the civil war in the United States, recognising both parties as lawful belligerents, and observing between them strict neutrality. This resolution was also negatived.

1 Kent, Com. on Amer. Law, vol. i. p. 26; Wheaton, Elem. Int. Law, pt. i. ch. ii. § 9, pt. iv. ch. i. § 12; Phillimore, On Int. Law, vol. i. § 137; Zacharia, Staats- und Bundesrecht, § 58; Terrett et al. v. Taylor et al. 9; Cranch's Rep. p. 50; Kelly v. Harrison, 2 Johnson's Cases, p. 29; Jackson v. Dunn, 3 Johnson's Cases, p. 109; Calvin's Case, 7 Coke Rep. p. 27

hardly be enforced against written instruments which provide especially against such claims or obligations. Nevertheless, if one of these constituent parts, originally a separate State, should, by the act of incorporation, vest in the new sovereignty all its means of satisfying its debts and obligations, the new State would, even in the case of a mere federal union, be bound to assume such debts and obligations to the extent of the means so transferred.'

1 Florida Bonds, Com. of Claims between U. S. and G. B. pp. 246 et seq.; Holford's Case, Com. of Claims between U. S. and G. B. pp. 382 et seq.; Flassan, Hist. de la Diplom., tome iii. p. 129; Merlin, Répertoire, verb. 'souveraineté.'.

80

CHAPTER IV.

RIGHTS OF INDEPENDENCE AND SELF-PRESERVATION.

§ 1. Independence of a Sovereign state-2. Foreign interference in its internal government-3. Its right to choose its own rulers—4. Such interference in dependent and confederated States-5. Interference in virtue of treaty stipulations-6. Proffered mediation, and mediation by invitation-7. Distinction between pacific mediation and armed intervention-8. When an arbitrator may employ force-9. Interference to preserve a balance of power-10. Treaty of Paris and Congress of Vienna in 1814 and 1815-11. Attempted tripartite treaty respecting Cuba-12. Interference for self-security-13. This is a pretext rather than an excuse-14. Independence of a State in its legislation-15. In its judiciary-16. In rewarding and punishing its own subjects-17. The case of Martin Koszta-18. Right of self-preservation-19. Means incidental to general right-20. Use of these means may be limited by treaty-21. By the rights of others-22. Extraordinary increase of army and navy-23. Fortifications and military schools-24. Right of self-defence without the limits of a State-25. Mr. Phillimore's basis of this pretended right-26. Defect of his argument—27. Such acts are belligerent, even when justifiable.

§ 1. EVERY Sovereign State may, from the very nature of its organisation, freely exercise its sovereign rights in any manner not inconsistent with the equal rights of other States. The very fact of its sovereignty implies its independence of the control of any other State. It may therefore exercise all rights and contract all obligations incident to its sovereignty, as a separate, distinct, and independent society, or political organisation. These rights and obligations are limited only by the law of nature and the existence of similar rights in others. The international rights of sovereign States have therefore been divided into two classes: absolute and conditional, the former including those rights to which a State is entitled as a distinct being or sovereignty, and the latter including those rights to which it is entitled only under particular circumstances in its relation to others.1

1 Wheaton, Elem. Int. Law, pt. ii. ch. i. § 1; Kluber, Droit des Gens, §36; Vattel, Droit des Gens, prelim. § 15; Rayneval, Inst. du Droit Nat. liv. ii. ch. i.; Bello, Derecho Internacional, pt. i. cap. i. § 7; Heffter, Droit International, §§ 29-31; Riquelme, Derecho Internacional, lib. i. tit. i. sec. i. cap. v. ; Ortolan, Diplomatie de la Mer, liv. i. ch. ii. and iii.

« PrécédentContinuer »