sons 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 (i).

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 means of a change in the social organization 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.

§ 29 a. Binding

effect of

treaties.

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 (k). II. As to public debts-whether due to or from the revolutionized Stato-a mere change in the form of government Public or in the person of the ruler, does not affect their obligation.

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

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

$ 30.

debts.

§ 30 a. Payment of debts of territory ceded by treaty.

§ 31.

Public domain and private rights of property.

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 (). 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 (m).

Most treaties relating to the transfer of territory contain a clause providing for the payment of the debts of the territory ceded. Thus, when Holland and Belgium were united in 1814, it was provided that the new Kingdom of the Netherlands should be responsible for the debts of both countries (n). When Schleswig, Holstein, and Lauenburg were ceded by Denmark, in 1864, to Austria and Prussia, it 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 (o). 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 (p). 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 (q). On the cession of Alsace and Lorraine by France, in 1871, Germany refused to take upon herself any share of the French national debt (r). 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 (s).

III. As to the public domain and private rights of property. If the revolution be successful, and the internal change in the constitution of the State is finally confirmed by the event of the contest, the public domain passes to the new

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

(n) [Art. VI. of the Treaty. See Hertslet, Map of Europe, vol. i. p. 38].

(0) [Annual Reg. 1864, p. 236].

(p) Hertslet, Map of Europe, pp. 1628, 1721].

(7) [Hertslet, Map of Europe, vol. ii. pp. 948 and 1052].

(r) [Calvo, vol. ii., p. 202.]

(s) [Parl. papers, Turkey (No. 44), 1878, and Turkey (No. 22), 1878.]

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

§ 31 a. Opinion of James, V. C.

his restoration, although they were the acts of him who is considered by the restored sovereign as an usurper (t). 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 (u).

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 (x).

"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 origin of the title of

Heffter, Das Euro

(t) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 14, § 16. (u) Klüber, Droit des Gens, sec. ii. ch. 1, § 258. (a) Conversations Lexikon, art. Domainen-verkauf. päische Völkerrecht, § 188. Kluber, offentliches Recht des deutschen Bundes, $169. Rotteck und Welcker, Staats-Lexikon, art. Domainen-kaufer,

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" (y).

Wrongs

IV. As to wrongs or injuries done to the government or § 32. citizens of another State;-it seems, that, on strict principle, and inthe nation continues responsible to other States for the juries. 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 of indemnities concluded between the American and Neapolitan governments.

A Sovereign State is generally defined to be any nation or people, whatever may be the form of its internal constitution, which governs itself independently of foreign powers (z).

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.

(y) [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].

(z) Vattel, Droit des Gens, liv. i. chap. 1, § 4.

§ 33. Sovereign States de

fined.