would be the dissolution of its social and political elements, and there would be no next of kin to succeed to the property which it had occupied while its corporate character remained. But as States, represented by monarchs, have been allowed to acquire property through the marriage of their sovereign, so have they been allowed to acquire property through his personal relation, as next of kin, to the sovereign of another territory in which the government is hereditary, upon the decease of that sovereign without any nearer relative. The question has been much discussed by writers on the Law of Nations and upon the general principles of Jurisprudence -whether the succession of the next of kin to an intestate person be a law of Nature, or merely an institute of Civil Law (x).

It is certain, however, that the death of the ruler of the State, without making any testamentary provision for his succession, even in countries where the power to do so is legitimately vested in him, can give no right to any foreign nation to take possession of the territory; for in that event, the power of disposition devolves upon the body corporate of the State. James I. of England succeeded to the throne of this country, partly by the nomination of the dying Elizabeth, and partly by right of his descent. The whole question of succession-whether through Agnates, relations on the male side, or Cognates, relations on the female side-is pro

(x) Grotius, 1. ii. c. vii. s. iii. p. 277. Grotius is among the supporters of the former opinion, founded on the presumption that the deceased person could not have intended his property to have been lost, but must have wished it to be given to those who were dearest—that is, according to all presumption, those who were nearest-to him. His commentator, Cocceius, thinks that the rule of succession in Europe arises from the necessity of the case; viz. that all land being occupied by somebody, the relations of the deceased would be without support if they did not succeed to his prospects. Sam. Cocceii Introd. ad Henr. Cocceii Grot. illustr. diff. proem. x. ss. 12 et 13: "Cum rebus terræ in universum occupatis nihil amplius supersit quod occupari possit, vel non quantum sufficit; homines occupatis rebus nati succedunt in occupationem parentum."Günther adopts this reasoning, vol. ii. p. 103.

Puffendorf, 1. iv. c. xi. De Success. ab Intestato.

perly and exclusively a matter to be settled by the constitutional law of the country itself. How far, at least, any exception may exist to this rule in the right of INTERVENTION which the legitimate apprehension of danger may confer on other nations, will be discussed in the subsequent pages of this work. Nor can it be denied that some of the bloodiest European wars have arisen out of disputed 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 of 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 young 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 Pretenders to the thrones of France, Spain, and Portugal in our own times.

CCLXXVI. Testamentary disposition has unquestionably 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 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 (October 2, 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 (y), in 1814, is so anomalous, that it is impossible to class it 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, Non ragioniam di lor, ma guarda e passa (z),

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 jurisprudence, indefensible.

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

(z) Dante, Inferno, iii. 51.

p. 146.

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 (f).

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

"taria" (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, Lipsiæ, s. xvi p. 37.