CHAPTER XV.

ACQUISITION OF RIGHTS.

CCLXXVII. 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.

CCLXXVIII. It sometimes happens that the debt between the Government of one country and the Government

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.

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

CCLXXIX. States are sometimes placed in such physical relations to each other, that some limitations of the abstract rights of each necessarily 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 (ƒ).

CCLXXX. 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 volun

"tariæ " (g).

In the language of Jurisprudence, when a thing is subject to the exercise of a right by a person who is not the master

(d) Vattel, l. ii. c. xvi. ss. 235–261. Vide post, vol. ii. part v. ch. vi.,

vii. and viii.

Klüber, ss. 155–157, n. d.

Günther, vol. ii. pp. 243-254.

(e) "Semper hæc est servitus inferiorum prædiorum ut natura profluentem aquam excipiant."-Dig. xxxix. t. iii. i. s. 22.

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

(g) J. N. Hertius, in diss. de servitute naturaliter constituta 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 aliena, alteri a natura 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, etc. Wieland et Foerster, Lipsia, s. xvi p. 37.

or proprietor, it is said to serve (res servit) or yield service to that other person (h).

CCLXXXI. 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 (i). 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 (j).

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 (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 different character, and was not a "jus in re" (k).

(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. xvi, 90, 169.

Cicero, de Lege Agrar. iii. 2.

(j)"Cum quis jus suum diminuit, alterius auxit, hoc est servitutem ædibus suis imposuit."-Dig. xxxix. t. i. 5, s. 22.

(k) "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. 15, s. 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.

CCLXXXII. 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 aliena is a derogation from the general principle of law, and requires, as a special and extraordinary right, the strictest proof of its existence.

CCLXXXIII. 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 (1). 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 (m).

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 Dunkirk should be destroyed (n). British and Dutch Commissioners were empowered by Treaty to superintend the execution of these demolitions, and though ejected in time of war, they returned

(1) Treaty of Utrecht (1713), between France and England, Art. 4. (m) Treaty of Utrecht, between Spain and England, Art. 10. (n) Traité d'Utrecht (1713), Art. 9.

Traité de la Haye (1717), Art. 4.

with the restoration of peace, and were only finally withdrawn, in compliance with the provisions of the Treaty of Versailles, 1783 (v).

By the Treaty of Paris, 1814 (p), it was stipulated that Antwerp should be an exclusively commercial port; and the stipulation was renewed by the Treaties of 1831 and 1839, which erected Belgium into a separate kingdom.

By the same Treaty of 1831 (q), it was stipulated, negatively, that the fortresses of Menin, Ath, Mons, Philippeville, and Marienburg should be demolished before December 1, 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 (r).

The Treaty of Vienna (1815), which reinstated the Pope in the possession of the Marches, Camerino, Beneventum, Pontecorvo, 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 de Ferrare et Commachio."

To cite one more instance. In 1856 (March 30), by a Convention between England, France, and Russia, the latter Power declared "that the Aland Islands shall not be forti“fied, and that no military or naval establishment shall be "maintained or erected there "(s).

(0) 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.

(p) Art. 15.

(9) Art. 1.

(r) Klüber, s. 133, n. c.

Ompteda, tit. ii. 600.

(8) Ann. Reg. 1856, p. 321.