be regarded, though dispositive, as being concluded on the condition rebus sic stantibus. If this is so, clearly the United States could denounce the treaties made with England, and the legal basis of a servitude drops. Westlake (i., 61), however, denies the correctness of the doctrine, and thinks that for this "it would have to be shown that the interests of third parties, which the servitudes were intended to secure, had ceased to exist in consequence of the change of sovereignty over the territory which it affected," and adds that it would be difficult to show this in such a case as that of the Swiss and European interests secured by the neutrality of Northern Savoy, which must, therefore, be considered as obligatory on France as the successor of Sardinia. The case cited is not in point because the obligation was taken over by France under treaty, as we have seen above, and in any event the argument would not apply in the case of an ordinary servitude, such as that of France and Newfoundland before 8th April, 1904, because in such a case no European interest is involved. But the impossibility of the doctrine seems to follow from this point also. Could France have ceded to any other power her rights in Newfoundland? The answer must certainly be that she could not, and that, similarly, a conqueror of France could not have claimed these rights. On the other hand, had France owned any territory in Newfoundland she could have ceded it, or a conqueror would have been entitled to it; no one doubts that. But a servitude is too essentially of a contractual character to be treated in International Law as a right in rem. The principle is really conceded by Hall (p. 90, n.), when he admits that a state may be able to make a cession of territory free from its own obligations, which could not be done if a servitude were right in rem. It may be remarked that Huber (p. 67) points out that cases of servitude are different from mere treaty obligations, such as the neutrality of Switzerland itself, or the right of the German Confederation to keep a garrison in Luxembourg-a right now obsolete since the German Confederation had no successor (Rivier, i., 300). The reason given by Huber is that the neutrality does not affect the land itself, but it seems very difficult to follow this distinction, and the safe plan is to regard all servitudes as contractual obligations just as the neutrality of Switzerland is contractual.

It may be desirable to note one further result of conquest-the fact that all the treaties of the conqueror with the annexed state disappear, and that rights stipulated for on behalf of people in the conquered state cease to have any validity against the conqueror. This, of course, follows from the doctrine of confusio, and is fully recognised by the jurists. It may be sufficient to illustrate it by a couple of recent instances in the Transvaal. With a view to protecting the natives of the Transvaal after 1881 from unfair treatment, it was laid down in the conventions of 1881 and 1884 that they should be allowed to hold land, but that all such holdings should be registered in the name of a commission or officer of the Republic. This continued from 1881 to 1905, when an action was brought in the Supreme Court of the Transvaal to compel the transfer of land in a native's name (Tsewu v. Registrar of Deeds, 1905, Supreme Court Reports, 130). The Court held that the registration was never necessary to be made in the name of any one but the native; that even before the annexation the treaty had not the force of law, but that, in any case, after the annexation it certainly had not the force of law, as it then fell to the ground. The other is a case of legislative action. A treaty of 10th December, 1894, between Great Britain and the Transvaal as to Swaziland, provided, inter alia, that "every exclusive right or privilege of, or belonging to, any individual, or individuals, corporation or company, with regard to imposition of or exemption from customs duties on goods, shall be liable to expropriation," subject to compensation, to be assessed by arbitration in case of difference. Each party was to appoint an arbitrator, and the two arbitrators were to appoint an umpire, or, if they disagreed, the Chief Court would appoint (Art. 10). His

Majesty's Government, when taking over Swaziland, decided to alter the procedure in such cases, and, no doubt on the view that the treaty had fallen to the ground, considered itself justified in passing a Proclamation (No. 3 of 1904), by section 12 of which a commission was to be appointed to decide as to concessions, and the Government was empowered to expropriate any concession at an amount not exceeding its value prior to the commencement of the war of 1899-1902. This would, of course, be quite impossible if the treaty had any binding force, and it seems to show how little force can possibly attach to treaties between other powers and the defunct state, when a treaty solemnly entered into by Her Majesty's Government does not bind it because of the disappearance of the other party. A similar case is that of the private revenue concessions of the Queen of Swaziland, also confirmed by the treaty of 10th December, 1894. Under it the Queen was to draw £1,000 a month from the concession holder in return for permitting him to collect all the so-called private revenue of Swaziland. On the annexation all the powers of the South African Republic passed to His Majesty's Government, and by a proclamation of 1905, the Governor of the Transvaal, who, under the Order in Council of 1903, is the Legislature of Swaziland, cancelled the concession which had passed before 1899 into the hands of the South African Republic, and provided that in future the private revenue should be paid into the hands of the Government of Swaziland. Thus, again, a right confirmed by Her Majesty's Government by treaty has been regarded as no longer binding on His Majesty's Government through the disappearance of one party to the treaty.

With regard to other than treaty relations of states, it is sufficient to note that Huber (p. 65) points out that quasi-contractual obligations may well exist, such as the enrichment of a state without just cause or obligations ex communione when a successor comes into possession of the common object through his ownership of the state territory (see Heffter, p. 218; Rivier, ii., 41 seq.) Examples of this sort of obligation are not of importance, and of course they do not apply to cases of conquest. On the other hand, it is important to note that Huber does not think that obligations ex delicto or quasi-ex delicto pass over. He adds that if the wrong is in any way connected with the ceded territory a second delict would arise if the owner did not remove the cause of injury to the third state, but that for his dolus or culpa lata the original offender remains responsible personally. It does not seem to me that this is open to any doubt, but it does seem surprising that Huber does not see that the doctrine that obligations ex delicto do not pass over is only to be supported on grounds that throw grave doubt on the validity of the doctrine regarding the passing over of contractual obligations. The ground is that they are pure personal rights, and that in private law such rights are not heritable. But after all, as Huber himself has argued, the person of private law and the person of International Law are not the same, and, apart from the analogy, it is not possible to argue that the state's obligations ex delicto are any more or less personal than its obligations ex contractu. The argument of the origin of a new delict can equally be applied to the continuance of a contract as the origin of a new contract when things go on as before. Neither Huber nor any one else seems to face this argument. They all fall back on the rule of Roman Law, which is not, however, in my opinion at all logically transferable to a person of International Law. They are forced to this position by their doctrine of succession; if they admitted merely a singular succession and the emergence of quite a new state person, they would find no difference in the treatment of obligations of contract or tort, and would not require to support themselves on inaccurate analogies. In Huber the fact is the more remarkable as (p. 115) he allows non-contractual obligations to be binding on a successor when the obligations are to private persons and not to states.

It may be here noted that Huber does not deal with the question of the right of a successor to sue on obligations ex delicto, either in the case of individuals or other states. This point raises a serious difficulty to his theory. For, according' to Roman Private Law (Justinian, Inst., iv., 12, 1, Moyle's note), an action was actively transmissible in all cases save those based on grievance or insult to the person, and so a successor state could claim on that analogy against a state which had offended its predecessor in any matter other than a mere slight or piece of discourtesy (e.g., to the monarch or the ambassador). But this would be notoriously contrary to law and usage, and so this fact is probably deliberately ignored in treating of state succession. As we shall see in Chapter VIII., the case of a claim even against an individual has been expressly held by the law officers of the Crown not to pass to the successor.

CHAPTER V.

STATE SUCCESSION IN RELATION TO THE TERRITORY, LEGISLATION,
ADMINISTRATION, AND JURISDICTION OF THE STATE.

THE boundaries of the territory acquired by the cession or conquest are regulated either by the treaty of cession or by the recognised boundaries before the conquest. If these boundaries are exceeded, then it is an act of aggression on the part of the cessionary or conqueror, giving rise to war should the aggrieved country see fit. Such a succession has nothing to do with succession to treaties. A boundary treaty, when completed, is not a contract but a conveyance, and the boundaries established are, as in the case of private law, good against the world. The cessionary or the conqueror cannot re-open the question on any legal grounds.

Cession or conquest gives title to the territorial waters of the state and its islands, even without express mention in treaties, though they are often definitely included—e.g., in the treaty of 30th April, 1803, for the cession of Louisiana by France to the United States; the treaty of 30th October, 1864, for the cession of Schleswig-Holstein; the treaty of 1st July, 1890, for the cession of Heligoland to Germany; and the Russo-Japanese treaty of 1905.

A cession of territory or the conquest of territory by a revolting colony without cession cannot be regarded, however, as conveying more than the rights over the land ceded, or the territory occupied by the revolting colony. Whether we regard the United States as having obtained their territories by cession, which is, in my opinion, technically the correct view, or as having obtained them by conquest only, still their rights cannot be supposed to extend over territory beyond their own limits. The United States for many years maintained the view that the States succeeded, in common with other British subjects, to all the rights enjoyed by other British subjects in the North American fisheries. They considered that the fact that fishery rights in Newfoundland, Nova Scotia, and Labrador were granted by the treaty of 1783 was not a mere concession but a recognition of an international right, and that, therefore, these rights were not abrogated by the war of 1812. The British Government argued that on the occasion of 1783 the rights of the United States were confined to their own territories, that the grant of fishery rights elsewhere was a mere concession, and that the clause of the treaty with regard to these rights was accordingly ipso facto terminated by the war. The United States practically gave away their own case in 1818, when they consented to the rights being renewed by treaty stipulations, and when in 1854 and 1871 they again consented to treat regarding their rights. This was admitted by Mr. Dana before the Halifax Fisheries Commission in 1878, and it is not now open to the United States to maintain the contrary view (see State Papers, vii.; Parliamentary Papers, vols. lv., lxxiv., lxxv., lxxx., cix.; Henderson, American Diplomatic Questions; Hall, pp. 93-95).

In the case of a treaty of partition and boundary made between a mothercountry and a seceding part, Hall (p. 97) holds that the treaty operates not as a treaty of cession but as an acknowledgment that the territory is in the possession of the state which has succeeded in establishing itself. Were it otherwise the absurdity would present itself that a new state-community would have no title to its territory until such a treaty was made, although the conclusion

of a treaty with it involves a previous acknowledgment that it is a state, and that it is in legal possession of its territories. This does not seem to me a very happy way of looking at the matter. It does not, indeed, from the point of view of the theory of state succession, make any difference, since, even if it is a succession by conquest, nevertheless it is regulated by the treaty just as much as if the treaty were one of cession, and so the distinction is not here important. But, looked at strictly, it is rather the case that the parent country recognises the seceding colony and its territorial limits only in the act of making the treaty. Up to that act there is no acknowledgment that the seceding colony is a state and that it is in legal possession of its territory. Until then it is a mere rebel and in illegal detention of another's territory. Hall's idea rests, of course, on the logical doctrines (i.) that there must be two sovereign states as parties to a contract, and (ii.) that an international person must have a state territory. But these doctrines can hardly be accepted. There must, indeed, be two parties to a contract, but it is quite possible that one of these parties becomes a sovereign state merely through the contract itself. It is true that such a contract belongs to the so-called transitory type of treaty; that it effects a conveyance, and gives the state created a right to its position as a right in rem, good against the world and not revocable by the other state. But there are somewhat analogous contracts, e.g., that for a cession of territory. Hall's theory, while not logically conclusive, is open to grave objections on other grounds. Suppose the colony to which independence is granted has not asserted its independence by war, and is not in possession of all the territory granted to it. The United States was certainly not in possession of more than a fraction of the vast territories granted in 1783. The Orange River farmers on whom, much against the will of a substantial minority, if not a majority, independence was forced by the Bloemfontein Convention of 1854, had done nothing to give themselves a claim to be a separate state, and had under their control but a small part of the territories acknowledged to be theirs. Even the Transvaal burghers, who received independence by the Sand River Convention of 1852, had neither a de facto independence nor the possession of the ceded territories. In both these cases,

as in the case of the Pretoria Convention of 1881, no pretence was made of a convention with an existing Government. The Sand River Convention of 1852 was expressly described in Sir George Cathcart's Proclamation of the 15th April, 1852, as a "gracious permission," and the first article of the Bloemfontein Convention of 1854 guarantees the future independence of the Orange River territory and its Government, and provides that after the necessary arrangements have been completed the people of the country shall be free, and that their independence shall be confirmed by an instrument freeing them from their allegiance to the British Crown, and declaring them to all intents and purposes a free and independent people, and their Government to be treated and considered thenceforth a free and independent Government. The two treaties do not pretend to be made with sovereign states; one is with the Transvaal Boers, and one with representative delegates of the inhabitants of the Orange River territory. Again, by the Pretoria Convention of 1881, the Commissioners guaranteed that complete self-government would be granted to the inhabitants of the Transvaal territory, and defined the territories. Contrast the language of the London Convention of 1884, which recognises the sovereignty of the Transvaal State. It does not, therefore, seem possible to regard the view of Hall as justified, either in theory or in practice, nor does the instance to which he refers require any such explanation. All that was required for the settlement of the point there mentioned the exercising of de facto sovereignty over parts of Maine, settled after 1790-was the view that territory not in the possession of England before 1783 could not be brought under its actual sovereignty so long as the validity of the title was under ligitation. It does not require Hall's theory of the nature