§ 18. By the and external vio lence confirmed by treaty. At Such a change in the being of a state may also be produced by the conjoint effect of internal revolution and foreign conjoint effect of internal quest, subsequently confirmed, or modified and adjusted by international compacts. Thus the House of Orange was expelled from the Seven United Provinces of the Netherlands, in 1797, in consequence of the French Revolution and the progress of the arms of France, and a democratic republic substituted in the place of the ancient Dutch constitution. the same time the Belgic provinces, which had long been united to the Austrian monarchy as a co-ordinate state, were conquered by France, and annexed to the French republic by the treaties of Campo Formio and Luneville. On the restoration of the Prince of Orange, in 1813, he assumed the title of Sovereign Prince, and afterwards King, of the Netherlands; and by the treaties of Vienna, the former Seven United Provinces were united with the Austrian Low Countries into one state, under his sovereignty.25 Here is an example of two states incorporated into one, so as to form a new state, the independent existence of each of the former states entirely ceasing in respect to the other; whilst the rights and obligations of both still continue in respect to other foreign states, except so far as they may be affected by the compacts creating the new state. In consequence of the revolution which took place in Belgium in 1830, this country was again severed from Holland, and its independence as a separate kingdom acknowledged and guarantied by the five great powers-Austria, France, Great Britain, Prussia, and Russia. Prince Leopold of SaxeCobourg having been subsequently elected king of the Belgians by the national congress, the terms and conditions of the separation were stipulated by the treaty concluded on the 15th of November, 1831, between those powers and Belgium, which was declared by the conference of London to constitute the invariable basis of the separation, independence, neutrality, and state of territorial possession of Belgium, subject to such modifications as might be the result of direct negotiation between that kingdom and the Netherlands. 25 Acte Final du Congrès de Vienne, Art. 65, 72, 73. § 19. Province or colony its independence, how considered by If the revolution in a state be effected by a province or colony shaking off its sovereignty, so long as the independence of the new state is not acknowledged by other powers, it may asserting seem doubtful, in an international point of view, whether its sovereignty can be considered as complete, however it may be regarded by its own government and citizens. It has al- other forready been stated, that whilst the contest for the sovereignty eign states. continues, and the civil war rages, other nations may either remain passive, allowing to both contending parties all the rights which war gives to public enemies, or may acknowledge the independence of the new state, forming with it treaties of amity and commerce; or may join in alliance with one party against the other. In the first case, neither party has any right to complain so long as other nations maintain an impartial neutrality, and abide the event of the contest. The two last cases involve questions which seem to belong rather to the field of politics than of law; but the practice. of nations, if it does not furnish an invariable rule for the solution of these questions, will at least shed some light upon them. The memorable examples of the Swiss cantons and of the Seven United Provinces of the Netherlands, which so long levied war, concluded peace, contracted alliances, and performed every other act of sovereignty, before their independence was finally acknowledged, that of the first by the German empire, and that of the latter by Spain,-go far to show the general sense of mankind on this subject. The acknowledgment of the independence of the United States of America by France, coupled with the assistance secretly rendered by the French court to the revolted colonies, was considered by Great Britain as an unjustifiable aggression, and, under the circumstances, it probably was so.27 But had the French court conducted itself with good faith, and maintained an impartial neutrality between the two belligerent parties, it may be doubted whether the treaty of com 27 See Memoire Justificatif pour servir de Réponse à l'Exposé des Motifs de la Conduite du Roi de France relative à l'Angleterre. Gibbon's Miscell. Works, vol. iv. p. 246. Recognition of its independence by other foreign states. § 20. International ef fects of a change in the person of the sovereign or in the internal constitution of the state. Treaties. merce, or even the eventual alliance between France and the United States, could have furnished any just ground for a declaration of war against the former by the British govern ment. The more recent example of the acknowledgment of the independence of the Spanish American provinces by the United States, Great Britain, and other powers, whilst the parent country still continues to withhold her assent, also concurs to illustrate the general understanding of nations, that where a revolted province or colony has declared, and shown its ability to maintain its independence, the recognition of its sovereignty by other foreign states is a question of policy and prudence only. This question must be determined by the sovereign legislative or executive power of these other states, and not by any subordinate authority, or by the private judgment of their individual subjects. Until the independence of the new state has been acknowledged, either by the foreign state where its sovereignty is drawn in question, or by the government of the country of which it was before a province, courts of justice and private individuals are bound to consider the ancient state of things as remaining unaltered.28 The international effects produced by a change in the person of the sovereign or in the form of government of any state, may be considered :— I. As to its treaties of alliance and commerce. III. Its public domain and private rights of property. I. Treaties are divided by the text writers into personal and real. The former relate exclusively to the persons of the contracting parties, such as family alliances and treaties guarantying the throne to a particular sovereign and his 28 Vesey's Ch. Rep. vol. ix. p. 347. The City of Berne v. the Bank of England. Edwards's Adm. Rep. vol. i. p. 1. The Manilla, Appendix IV. Note. D. Wheaton's Rep. vol. iii. p. 324. Hoyt v. Gelston, p. 634. The United States v. Palmer. 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.29 debts. II. As to public debts-whether due to or from the re- Public volutionized 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 authorized agents, for its public use, the nation continues liable for them, notwithstanding the change in its internal constitution.39 main and III. As to the public domain and private rights of pro- Public doperty. If the revolution be successful, and the internal change private in the constitution of the state is finally confirmed by the rights of property. event of the contest, the public domain passes to the new government; and this mutation is not necessarily attended with any alteration whatever in private rights of property. But it may 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." 29 Vattel, Droit des Gens, liv. ii. ch. 12, §§ 183-197. 30 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. 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 sequestrated, 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.31 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 a usurper.32 On the other hand, it seems that such alienations of public or private property, to the subjects of the state, may be an 31 Puffendorf, de Jur. Nat. et Gent. lib. viii. cap. 12. §§ 1-3. |