its territories as its own. Such, for example, was the Bloemfontein Convention of 23rd February, 1854, recognising the independence of the Orange Free State. It is true that the treaty creates a new party, but the succession is precisely analogous to the succession of a cessionary in the ceded territory, and the important point is the treaty of cession.

(iii.) Here also must be reckoned cases where one power agrees with another for the absorption of the former by the latter; for example, the treaty of the 7th December, 1849, for the cession of Hohenzollern Sigmaringen and Hohenzollern Hechingen to Prussia (Hertslet, Map of Europe by Treaty, ii., 1117). Such treaties are sometimes said not to be real treaties, inasmuch as the extinction of the personality of the state prevents there being two parties to the contract (Westlake, i., 64). This seems, however, to be a logical fallacy, as in the statement made on page 63 that the voluntary extinction of a state by constitutional means is impossible. The state exists to contract, and its existence continues in the act of contracting, even though it perishes as the result of the contract. But though undoubtedly the disappearance of the state diminishes the sanction of the contract, inasmuch as there is no state to insist on the contract being carried out, still the contract is binding, not only morally but also legally, on the contracting party which remains, and as a matter of fact such contracts are observed with as much faith as other treaties, though like them they may grow obsolete with change of circumstance, and may be altered by the successor. It is not possible to say that the terms of union between Scotland and England do not form a binding contract, though in that case both parties have really disappeared, and yet the terms of that contract are liable to be altered, and are altered from time to time by the Imperial Parliament. Again, it is objected that the rights transferred by such treaties are rights regarding a whole state and not merely a part, but to this it may be replied that the difference is one of degree and not of kind.

These cases, however, form a transition to the cases of annexation or conquest, under which head may be classed :—

(i.) The ordinary cases of annexation, which, like them, show (a) a disappearance of one party, and (b) a succession to the whole State, but differ in the essential point of there being no treaty of cession. Under this head we would class also:

(ii.) Cases where the one state seizes and maintains its hold on a portion of the territory of another, in which case both parties remain in existence and a succession to a part only of the state takes place. This case, though theoretically possible, is hardly found in modern International Law, though the Argentine Republic used to claim that Great Britain occupied this position with regard to them in connection with the holding of the Falkland Islands. Their recent legislation seems to abandon this claim by recognising the islands as foreign territory.

(iii.) Similar, too, would be the case of a revolted colony, or part of a state, which remains independent without a special treaty, as in the case of the South American Republics and Spain. Here, again, both parties remain independent, and there is only a part of the state to succeed to, but there is no treaty, and, though it is somewhat awkward to call these cases annexation, or even conquest, the term is logically appropriate, and will be used throughout for convenience (cf. Halleck, ii., 480, 481).

The distinction between cession and annexation or conquest is a difference in the title of the territory acquired, and the important result of such difference is that the terms are in the case of cession primarily regulated by the treaty, leaving only doubtful points to be settled by the general doctrine of International Law, which, on the other hand, regulates all questions regarding annexation or conquest. This opposition is nowhere recognised by Huber, who, on the contrary, bases his whole theory on one idea of state succession, which is, he holds, carried out in

treaties. The end of this topic of International Law consists, therefore, in developing, partly on general grounds of equity and partly on generalisations from treaties, rules for the incidents of state succession. The theory here supported, on the other hand, is based on generalisations from the practice in annexations by conquest without treaty in the first place, and only secondarily on treaties, which I consider, as often as not, contain precisely the opposite of what the rule of annexation would be, as is, indeed, to be expected, seeing that treaties of cession are used for the mitigation of the harshness of pure conquest. Further, what is still of more importance is that treaties do not cover the whole of the questions which arise, and, practically, it is necessary to supplement the theory derivable from treaties.

The view here taken, therefore, is that there is a common law of state succession, the evidence for which mainly exists in international practice, as evidenced in the administrative acts of governments and in the judicial decisions of their courts. Sometimes doctrines of this common law are embodied in treaties, but at least as often treaties introduce doctrines which are modifications of, or derogations from the strictness of the common law. It might, indeed, be argued that state succession should be considered as regulated by different and distinct laws in the case of conquest and of cession, and while the former would be governed by the common law, the latter, in cases where the treaty was not explicit, would be governed by a law deduced from treaties of cession only. The answer to this theory is, that the rule is not observed in practice. As we have seen, Huber extends the law which he derives from treaties to cases of conquest, and similarly when treaties are silent, governments insist on arguing from cases of conquest to cases of cession, holding, I think rightly, that the common law applies where the treaty is silent.

The examples of succession by cession, or by annexation or conquest, which I propose to quote are confined to the nineteenth and twentieth centuries, and mainly to the latter part of the period from 1815 onwards. Like the English law of trusts, at least before the Judicature Acts, International Law is a thing of rapid growth, and instances before 1800 are usually of little value. This is partly due to the alteration in the conception of the state, which is no longer regarded as the patrimony of the dynasty. It is also due in great measure to the increased value put on the rights of neutrals. But, even in the nineteenth century, the treaties and annexations prior to the European settlements of 1814 and 1815 are of little value, because the contracting parties--e.g., Westphalia, Holland and the smaller German States-were not really independent states, but mere vassals of France, and it was not till the end of the Revolutionary period that Europe became divided into great national states. This applies with special force to the German Empire, which formally broke up in 1805.

Since 1815 the examples of cession of most importance for our purpose are the treaty of 10th November, 1859, for the cession of Lombardy by Austria to Sardinia; the treaty of 23rd August, 1860, for the cession of Savoy and Nice to France by Sardinia; the treaty of 2nd February, 1861, for the cession of Mentone and Roccabruna by Monaco to France; the treaty of 30th October, 1864, for the cession of Schleswig-Holstein by Denmark; the treaty of 3rd October, 1866, for the cession of Venetia by Austria to Sardinia; the treaty of 1867, for the cession of Alaska to the United States of America; the treaties of 10th May, 1871, and of 11th December, 1871, for the cession of AlsaceLorraine by France to Germany; the treaty of 1st July, 1890, for the cession of Heligoland by Great Britain to Germany in return for certain territories in Africa; the treaty of 10th December, 1898, for the cession of Cuba, the Phillipines, and Puerto Rico by Spain to the United States; the treaty of 8th April, 1904, regarding the French and English interests in Newfoundland and Africa; and the treaty of 5th September, 1905, ceding half of Sakhalin and

the lease of Port Arthur to Japan. Analogous to cession is the case of the separation of the Netherlands and Belgium in 1831 to 1839. Holland remained the same, but granted Belgium freedom and sovereignty. Similarly analogous are the cases of the granting independence to the Transvaal Boers by the Sand River Convention of 1852, and to the Orange River Colony Boers by the Bloemfontein Convention of 1854, and the restoration of independence, though in a qualified form, to the Transvaal by the treaties of Pretoria and London, in 1881 and 1884. The last case may be considered not in point in view of the suzerainty retained by the English Government (see Parliamentary Papers, C. 8721 and 9507), but, leaving aside the exact nature of the suzerainty, it is certain that the Transvaal was at least a semi-soverign state (cf. Baty, International Law in South Africa, Chapter II.), and had an international personality (cf. Westlake, i., 27). Of the opposite form of cession, where one state merges its identity in the other, is the treaty of the 7th December, 1849, above referred to, between Prussia and the reigning quasi-sovereign princes of Hohenzollern for the cession of these states to Prussia.

The case of the Ionian Islands is best regarded as a treaty of cession. The position of the islands was very anomalous, as they were said by the treaties of the 4th November, 1815, between England, Austria, Russia and Prussia, to form a free and independent state under the immediate and exclusive protection of the King of Great Britain and Ireland. The arrangements of 1863 practically amount to a treaty of cession by Great Britain, with the consent of the islanders, to Greece, though they do not take that form. Greece succeeded to the islands, subject to the terms of a convention between the great powers (cf. Westlake, i., 23; Hall, p. 28).

Cases of annexation or conquest are comparatively very few. Those usually quoted are the annexations by Italy and Prussia in 1860 and 1866. The facts are, that by proclamation of the 18th March, 1860, the King of Sardinia annexed the territories of Emilia (Bologna, Ferrara, Forli, Parma, Modena, etc.), and by proclamation of the 22nd March, 1860, the Duchy of Tuscany (see State Papers, LVII., 1029 seq.). Similarly, by proclamations of the 17th December, 1860 (ibid. 1040 seq.), he annexed (i.) the Neapolitan dominions; (ii.) Umbria; (iii) the Sicilian Kingdom; and (iv.) the Marches. In all these cases, the annexation was based on a plebiscite of the population, though not actually sanctioned by the Governments which were overthrown, either by peaceful revolution, as in Parma, Tuscany and Modena, or by force of arms, as in Sicily and Naples. It is not possible to regard these acts as good precedents of conquest in so far as the treatment of claims against the Government by individuals is concerned. It would have been impossible for the Italian Government to adopt any attitude of standing on its strict legal rights towards new subjects whom it was most anxious to conciliate. The other examples, of Prussian action, are somewhat more in point. By a proclamation of 20th September, 1866, the German Emporor annexed to the dominion of Prussia, the Kingdom of Hanover, Hesse, Nassau, Frankfurt (State Papers, LVI., 1050), and by a Prussian law of 24th December, 1866, and a Patent of 12th January, 1867, Schleswig-Holstein. Prussia could, of course, base her action on the treaty of peace at Prague with Austria, but Austria had no right to cede Hanover, etc., and so the act was one of annexation pure and simple.

England gives us in recent years three good examples of annexation-examples which in many ways are of more importance than those of Italy and Prussia. These are the annexation of the Transvaal in 1877, which resembles closely the German and Italian instances; that of Upper Burma in 1886, a case of pure conquest; and that of the Transvaal and Orange Free States in 1900, which is also a case of conquest. It may, indeed, be argued that this case should be considered rather one of cession, as the war was concluded by a treaty of peace. This view

has actually been argued by Mr. Smuts, in Van Deventer v. Hancke and Mossop (1903, Transvaal Supreme Court Reports, 404). The argument in favour of this view is based on the description of the signatories to the articles of peace of Vereeniging, of 31st May, 1902, when Messrs S. W. Berger, F. W. Reitz, Louis Botha, J. H. de la Rey, L. J. Meyer, and J. C. Krogh are said to be " acting as the Government of the South African Republic," while four other persons are described as 66 acting as the Government of the Orange Free State." But this view is impossible. (i.) The annexations of 1900 were absolute in terms, and the British Government never in any way recalled them. (ii) The wording of the description of the signatories is significant; "acting as" is contrasted with "on behalf of the British Government" in the case of Lord Kitchener and Lord Milner, and to the description of the Boers is added "on behalf of their respective burghers." (iii.) The document is described as "Articles," not as a treaty, and in the body of it no reference is anywhere made to the Governments of the Republics. (iv.) The correspondence preceding the Articles shows clearly that His Majesty's Government would never consent to the "renewed independence" of the Boer Republics-see the Secretary of State for War's telegram to Lord Kitchener, of 16th April, 1902 (Cd. 1096, p. 3). nor would they entertain any proposals based on the continued independence of the former republics which had been formally annexed to the British Crown (ibid.). The theory was, in the case of Van Deventer, expressly rejected by Innes, C.J. (at p. 411), and its only English supporter seems to be Sir T. Barclay in an article in the Law Quarterly Review, xxi., 307. on behalf of the shareholders of the Netherlands South African Railway. He attempts to show that the Government of the Transvaal, having appropriated the railway, was bound to pay for it; that this Government had been recognised up to 31st May, 1902, by His Majesty's Government, and that the British Government must stand to the shareholders in the same position as the Transvaal Government did. It is safe to say that His Majesty's Government would never consider this view for a moment.

Of other conceivable cases it is not possible to cite any modern instance of a conquest, not recognised by a treaty of cession, when only part of a country was conquered. From the point of view of the Argentine Republic it is possible that the Falkland Islands are so regarded. A settlement was made there by the Republic of Buenos Ayres in 1820, and the islands were claimed as formerly part of the Spanish Dominions. The settlement was, however, destroyed in 1831 by the United States, and the islands were recolonised in 1832 by Great Britain. The Argentine Republic long put forward a formal claim to them and did not permit her men-of-war to call there. The example is, however, of no use as a precedent, because Great Britain has always treated it merely as a case of occupation of desolate territory. Similarly, the case of a revolting part of a state establishing itself without a treaty of cession is not known to recent modern history, though this was the position of Spain in regard to the revolted colonies in South America.

These cases will be dealt with in Chapters IV. to IX., under the heads of cession and annexation, and after that will be considered the special cases of entry into a federal union (Chapter XI.), and protected states, etc. (Chapter X.).

CHAPTER III.

THE QUESTION OF STATE SUCCESSION IN ENGLISH LAW.

INTERNATIONAL LAW is recognised in most continental countries and in the United States of America as being part of the law of the land. It is, however, hardly possible to maintain this position with regard to England. It is true that, in connection with the privilege of ambassadors, International Law has received full recognition in England, and Lord Mansfield (3 Burrows, 1478, and 4 Burrows, 2016) in the cases of Triquet v. Bath and Heathfield v. Chilton, expressly declared that the law of nations was part of the common law of England, and that the Act of Parliament, 7 Anne, c. 12, was not intended to alter, and could not alter, the law of nations relative to the privileges of ambassadors, and he quoted Lords Talbot and Hardwicke and Lord Chief Justice Holt as concurring in this opinion. Further, in the case of Wolff v. Oxholm (6 Maule and Selwyn, 99) Lord Ellenborough decided against the validity of a Danish Ordinance confiscating debts due from Danish subjects to English people, consequent on the existence of a state of war, on the ground that the right contended for, though supported by Vattel, was not recognised by Grotius and was impugned by Puffendorff and others.

It is also true that international obligations have frequently been recognised by Acts of Parliament (Holland, Studies in International Law, pp. 176 seq.), and in the case of prize jurisdiction Lord Stowell, Sir J. MacIntosh, Sir Robert Phillimore and Dr. Lushington have all expressly asserted that the law they administer is International Law (Holland, pp. 196-199), and Lord Stowell and Dr. Lushington have held that International Law in a Court of Prize can overrule even an Act of Parliament.

It is, however, impossible to maintain the latter opinion, or even with Professor Holland (p. 195) to believe that the law of nations is incorporated into the common law which binds the courts of this country. * It may, indeed, be doubted how far Professor Holland intended to carry this theory. It was sufficient for his purpose to show that International Law was only part of the common law, and, as such, subject to be overridden by an Act of Parliament. The furthest that we can go is to admit that parts† of International Law have been incorporated with the common law, including the privileges of ambassadors and prize. This is clearly proved by the two leading cases on the question. Lord Chief Justice Cockburn in the case of the Franconia (pp. 154 seq.) held strongly that no consensus of jurists, nor even the clearest proof of unanimous assent on the part of other nations, would be sufficient to authorise the tribunals of this country to apply without an Act of Parliament what would practically amount to a new law. It is not quite certain exactly what view Lord Cockburn held as to the evidence required to show that any principle had been incorporated in English Law. It may be that he would not have been satisfied with anything short of an Act of Parliament or a continuous series of judgments. If so, this is probably going too far, but it is certainly necessary to prove that the particular proposition put forward in any case has been recognised and acted upon by England, or that it is of such a nature and has been so widely and generally accepted that it can hardly be supposed that any civilised state would repudiate it. This is the effect of the judgment of the case, The West Rand Central Gold Mining Co. v. The King (1905, 2 K.B. 491).

* For dicta on this point cf. Best, C.J., De Wütz v. Hendriks (2 Bing. 315); Forsyth, Cases and Opinions, p. 237, and Law Quarterly Review, xxii.

For other points cf. Moore, Act of State in English Law, pp. 33-39.