puted succession to the government of kingdoms. No educated person is ignorant of the wars of England under the Edwards and Henries, for the crown of France, or of those horrible thirty years of warfare, which originated in the claim of the Elector Palatine of Bohemia, and which desolated Germany till the Treaty of Westphalia,—or the general distraction and prolonged disturbance of the peace of Europe which arose out of the disputed succession to the House of Spain, and was closed by the Treaty of Utrecht.

The claim of the sovereign of another nation is rarely without the pretext of support from a party in the country which is the object of his ambition. When Philip II. of Spain seized on Portugal, claiming through a younger daughter of King Henry, with whom the male line became extinct in 1580, to the exclusion of the House of Braganza, allied to an elder daughter, he was supported by the alleged free choice of the magnates of Portugal. The unfortunate Elector Palatine was supported in his pretensions to the kingdom of Bohemia by the choice and approbation of the States of the realm.

A large party, both in Great Britain and Ireland, were favourable to the claims of the Pretender during the reign of the first two Georges. A similar remark is applicable to the Pretender to the thrones of France, Spain, and Portugal in our own times.

*CCLXXV. Testamentary disposition has unquestionably [*300]

been a mode of territorial acquisition by nations, in the persons

of their governors. But it can only be so when the kingdom is proprietary—a state of things which it has been already observed (2) cannot be said now to exist in Europe; not even, it is presumed, in Russia; though it might happen that the nation adopted and ratified the will of the deceased sovereign. The famous will of Charles II. of Spain, made (2d October, 1700), under the superintendence of the Cardinal Portocarrero his minister, and after receiving the advice of the Pope and of the most learned theologians-that will by which he bequeathed dominions upon which the sun never set, to the second son of the Dauphin of France— is a remarkable instance of the exercise of this power, but one which is not likely to be imitated.

In truth, the only sound rule upon the whole subject of these modes of acquisition, either testamento or ab intestato, which can find its place in a work of International Jurisprudence, is this, that the voice of the people of the country, concerning whose government the dispute arises, should, through the legitimate channels of its own constitution, decide the question for itself in such a manner as not to threaten the security of other nations.

Conquest, fortified by subsequent treaty, gives a valid International title to territory; but this subject belongs to a later part of this work.

The case of the acquisition of a portion of the dominion of Saxony by Prussia, (a) in 1814, is so anomalous, that it is impossible to class it

(2) Vide antè, p. 284.

(a) See Talleyrand's admirable Mémoire raisonné on this subject, Trait. de Dipl., De Garden, t. iii. p. 146.

AUGUST, 1854.-16

under any known or legitimate category of International Acquisition. If it belong to any, it is to *that of Conquest and Treaty just mentioned; but, in truth, it belongs to the class of transactions of which we must say,

[*301]

"Non ragionam di loro, ma guarda e passa."(b)

with, however, a strong protest that no axiom of International Law is to be deduced from an act, which seems, upon all the principles of that science, indefensible.

[*302]

*CHAPTER XV.

ACQUISITION OF RIGHTS.

CCLXXVI. The property of a State may not only be alienated, but may also be subjected to obligations and services in favour of another State; as the property of an individual may be burdened and encumbered in favour of another individual.(a) This may, of course, happen in various ways; but it most frequently occurs when a State, having contracted pecuniary obligations towards another State, has mortgaged its revenues, or pledged a portion of its territory, as a security for the payment of its debts. Thus, among other instances, the United Provinces of the Netherlands hypothecated Vlissingen, Rameken, and Briel to England, in 1585. Denmark, in 1654, hypothecated the province of Holland to Sweden, as a security for the peace then concluded. (b) Weimar appears to have been pawned, so to speak, to Mecklenburg in 1803,(c) and Corsica by Genoa to France in 1768.

We are not speaking now, it will be observed, of debts contracted by States to Individuals (a question to be dealt with hereafter), but to other States.

*CCLXXVII. It sometimes happens that the debt between [*303] the Government of one country and the Government of another is made the subject of a treaty. Sometimes the Government of a third Power guarantees the payment of the debt. (d) In 1776 Russia guaranteed a loan of 500,000 ducats contracted by the Polish Government.

By the 97th article of the Treaty of Vienna (1815), the maintenance

(b) Dante, Inferno, III. 51.

(a) Günther, vol. ii. pp. 153–161. Vattel, 1. ii. c. ii. s. 80.

Heffters, p. 133. s. 71.

Klüber, vol. i. s. 140.

(b) Günther, vol. ii. p. 153.

Dumont, C. Dipl. t. v. s. i. p. 454.

(c) Martens, Rec. vol. viii. s. 54. Ib. p. 229.

See too, Schmauss, C. J. G. vol. ii. pp. 1140, 1150.

(d) Vattel, l. ii. c. xvi. s. 235–261. Vide post, Chapter on TREATIES.

Klüber, s. 155—157., n. d.

Günther, vol. ii. pp. 243–254.

of the credit and solvency of the establishment called the Mont-Napoléon, at Milan, was especially provided for.

CCLXXVIII. States are sometimes placed in such physical relations to each other, that some limitations of the abstract rights of each neces‐ sarily flow from their natural relations, or from the reason of the thing. Thus a State is bound to receive the waters which naturally flow within its boundaries from a conterminous State. This obligation belongs to the class of "servitutes juris gentium naturales," and here the provisions of the Digest(e) and Institutes may be said to be identical with those of International Law.(f)

CCLXXIX. A State may voluntarily subject herself to obligations in favour of another State, both with respect to persons and things, which would not naturally be binding upon her. These are "servitutes juris gentium voluntaria." (g)

*In the language of Jurisprudence, when a thing is subject to [*304] the exercise of a right by a person who is not the master or proprietor, it is said to serve (res servit) or yield service to that other person.(h)

CCLXXX. The doctrine of Servitus occupies an important place in the Roman Law; and in some shape, and under some appellation or other, exists of necessity in the jurisprudence of all nations.() This obligation to service constitutes a right in the obligee or the person to whom it is due, and it ranks among the "jura in re," while it operates as a diminution and limitation of the right of the proprietor to the exclusive and full enjoyment (libertas rei) of his property.(k)

According to the Roman Law, the Servitus consisted either-1. in not doing something (in non faciendo), and was negative (servitus negativa); or 2. in suffering something to be done (in patiendo), and was affirmative

(e) Semper hæc est servitus inferiorum prædiorum ut naturâ profluentum acquam excipiant."-Dig. xxxix. t. iii. 1. s. 22.

(f) Heffters, s. 43: "Worauf sich unbedenklich auch die Vorschriften des Römischen Weltrechtes anwenden lassen."

(9) J. N. Hertius, in diss. de servitute naturaliter constitutâ cum inter diversos populos, tum inter ejusdem reipublicæ cives, (Prolegom. s. 3. in ejusd. Comment. et Opercul. v. ii. t. iii. p. 66.) defines servitus as "jus in re alienâ, alteri à naturâ constitutum, cujus vi et potestate dominus istius rei ad alterius utilitatem, aliquid pati aut non facere in suo tenetur."-De necessitate et usu Juris Gentium, &c., Wieland et Foerster, Lipsiæ, s. xvi. p. 37.

(h) Dig. viii. passim.

Instit. ii. 3.

Cod. iii. t. 34.

Domat, 1. i. t. 12. s. 1.

Savigny, Recht des Besitzes, Fünfter Abschnitt, p. 575.

Mackeldey, Lehrbuch des R. R., s. 274. u. s. w.

Schilling, Pandekten Recht, s. 446. u. s. w.

Puchta, Instit. s. 252.

(i) "Aussi les servitudes ont-elles été reconnues partout où les hommes se sont fixés d'une manière permanente en formant des associations durables."-Ahrens, Philosophie du Droit, p. 324.

"When a thing or property was free from all servitus, it was called res optima maxima."-Dig. 1. t. 16. s. 90, 169.

Cicero, De Lege Agrar. iii. 2.

(k) "Cum quis jus suum deminuit, alterius auxit, hoc est ei servitutem ædibus suis imposuit."-Dig. xxxix. t. 1. s. 5, 9.

(servitus affirmativa): but it could not consist in the obligation to do something (in faciendo). Not that the owner of a thing might not be obliged to do something in relation to that thing, for the benefit of another person; but that this obligation *assumed a technically [*305] different character, and was not a "jus in re."(1)

It is not, however, necessary to examine with greater minuteness the provisions of the Roman Law upon this subject, though some mention of the general doctrine was a necessary preface to the application of it to the case of States; for some States, as well as individuals, have been and are entitled to exercise rights of this description, and others therefore are and have been subject to the obligations which correspond to them.

CCLXXXI. The servitutes juris gentium must, however, be almost always the result either of certain prescriptive customs, or of positive convention. The entire liberty which each State naturally possesses over its own property cannot be curtailed upon presumption. The jus in re alienâ is a derogation from the general principle of law, and requires, as a special and extraordinary right, the strictest proof of its existence.

CCLXXXII. History furnishes many examples of these servitutes voluntaria, both as to persons and things. As to persons, the stipulations of various Treaties between England and France provide that the Stuart Pretender should not be permitted to reside in France.(m) And when Spain confirmed by Treaty the acquisition of Gibraltar to England, she stipulated that neither Moors nor Jews should be allowed to reside there.(n)

As to places, there are various instances of servitutes both negative and affirmative, but chiefly of the latter description. Of the negative kind was the engagement of France, the subject once of so much anxiety and so many *conventions, that the port and fortifications of

[*306] Dunkirk should be destroyed. (o) British and Dutch Commis

sioners were empowered by Treaty to superintend the execution of these demolitions, and though ejected in time of war, they returned with the restoration of peace, and were only finally withdrawn, in compliance with the provisions of the Treaty of Versailles, 1783.(p)

By the Treaty of Paris, 1814, (q) it was stipulated that Antwerp should be an exclusively commercial port; and the stipulation was renewed by the Treaties of 1831-39, which erected Belgium into a separate kingdom.()

By the same Treaty of 1831,(s) it was stipulated, negatively, that the fortresses of Menin, Ath, Mons, Philippeville, and Marienburg should

(1) "Servitutum non ea natura est ut aliquid faciat quis (veluti viridaria tollat aut amoniorem prospectum præstet, aut in hoc ut in suo pingat :) sed ut aliquid patiatur, aut non faciat."-Dig. viii. t. i. s. 15.

(m) Treaty of Utrecht (1713), between France and England, Art. 4. (n) Treaty of Utrecht, between Spain and England, Art. 10.

o) Traité d'Utrecht (1713), Art. 9.

Traité de la Haye (1717), Art. 4.

(p) Koch, Hist. des Tr. vol. i. pp. 333-4. See, too, the Treaties of Radstadt and Baden between France and the Emperor of Germany, Arts. 5, 8, 9.

(9) Art. 15.

(2) Art. 14.

(s) Art. 1.

be demolished before the 1st of December, 1833; and affirmatively, that the other Belgian fortresses should be kept in repair by the King of the Belgians.

At one time Holland insisted that the Ostend East India Company, founded in 1723, and abolished by the Treaty of Vienna in 1731, was under a servitus non navigandi.(t)

The Treaty of Vienna (1814), which reinstated the Pope in the possession of the Marches, Camerino, Beneventum, Ponte-corvo, and the Legations of Ravenna, Bologna, and Ferrara, on the right bank of the Po, subjected His Holiness at the same time to the servitus of suffering Austrian garrisons "dans les places(u) de Ferrare et Commachio."

*CHAPTER XVI.

EXTINCTION OF DOMINION.(a)

[*307]

CCLXXXIII. As Dominion is acquired by the combination of the two elements of fact and intention, so, by the dissolution of these elements, or by the manifestations of a contrary fact and intention, it may be extinguished or lost.(b)

In this case the dominion is lost, actually or by presumption, with the consent of the State which loses it.

CCLXXXIV. The title of Prescription in another State is often, though not necessarily, founded on the presumed dereliction of the possession by the original owner.

It must be borne in mind that this presumption like all others, is liable to be repelled by proof of sufficient strength, (c) that is, by evidence of a state of facts wholly inconsistent with such presumption. On the other hand, it should be observed that there is a conduct, and that there are acts on *the part of a State, which must be con[*308] strued as an abandonment of her previous rights. For instance, a State may make herself a party to some convention upon another matter, but in which the possession or right originally belonging to her is

(t) Klüber, s. 133. n. c.

Ompteda, tit. ii. 600.

(u) The real meaning of this term underwent much discussion during the recent disturbances in Italy.

(a) Grotius, 1. ii. c. ix.-Quando imperia vel dominia desinunt, 1. iii. c. ix. 9. Martens, t. ii. 1. ix. p. 340-4.

Günther, vol. ii. p. 213.

Heffters, 72.

Muhlenbruck, 1. ii. c. iii. s. 270.

(b) "Ferè quibuscunque modis obligamur, iisdem in contrarium actis liberamur; quùm quibus modis acquirimus, iisdem in contrarium actis amittimus. Ut igitur nulla possessio acquiri, nisi animo et corpore potest, ita nulla amittitur, nisi in quâ utrumque in contrarium actum est."-Dig. L. 17, 153; xli. 2, 8.

(c) "Quia verò tempus memoriam excedens quasi infinitum est moraliter, ideo ejus temporis silentium ad rei derelictæ conjecturam semper sufficere videbitur, nisi validissimæ sint in contrarium rationes."-Grotius, De J. B. 1. ii. c. iv. s. 7.