of industrial loans, and so the completion of the succession by cession does not transfer these payments to him. The objection that this theory will not apply to peaceful cessions he meets by pointing out that it is not the military occupation that is decisive for the temporary and provisional succession, but simply the actual lordship of the conqueror which is completed by the treaty of cession. In a treaty of peaceful cession both these requisitions-actual lordship and treaty of cession- -come together. This argument is neither very clear nor convincing, and it is not apparent why the conqueror should not have the right to receive repayment of loans, or why payment to him should not be a good discharge of the debt. Hall (p. 420) seems to recognise that even when in his view the occupier of territory cannot recover such debts the conqueror can. "It is only when the complete conquest has been made, and the identity of the conquered state has been lost in that of the victor, that the latter can stand in its place as a creditor and gather in the debts which are owing to it." This of course does not apply to taxes and duties which the occupier can always collect (ibid., p. 279, n. 2). Hall's remarks apply in the case of the conquest of a portion of a territory followed by a treaty, and therefore directly contradict Huber.

Of course treaty stipulations may preserve certain rights to the ceding state, and the conquest or cession cannot relate back to the time before it was completed. Sums of money paid to the ceding state for lands within ceded territories cannot be demanded from the ceding state. Examples of treaty stipulations are not very numerous. By Art. 15 of the Franco-Sardinian Treaty of 1860, France undertook to account for the sums due by public bodies and corporations at Savoy and Nice to the Sardinian Government in respect of loans. A similar provision was made in the Treaty for the cession of Schleswig-Holstein in a protocol of 1st April, 1865, and at the Frankfurt Conference the French representative successfully maintained the right of his Government to be repaid advances made for industrial purposes under a law of 1st August, 1860, to persons in Alsace-Lorraine. The German representative, however, declined to allow any other debt to be considered as falling under this head. On similar principles Art. 2 of the Treaty of Zürich of 10th November, 1859, stipulated that payments of the sum due to the state by the concessionaires as an equivalent of the cost of the railways in the ceded territories were to be made to the Austrian Treasury, and not to Italy.

But the general rule seems to be that all these claims and funds pass over to the conqueror or cessionary. This follows from the fact of the passing over of the territory and of the private domain (see (c) above), which carries with it all contract rights relative thereto, unless especially exempted by treaty in the case of cession. The conqueror or the cessionary takes possession of every form of right which he can enforce, and in his own courts he has no difficulty in making good the rights which rest only on contract, since he can bring actions, just as he can bring actions to enforce the delivery of property which has passed to him through his seizing the country. On the other hand just as, as we have seen above, the property situated outside his jurisdiction does not pass to him through the cession or annexation, so it cannot be expected that there is a rule of law that he can enforce in foreign courts personal rights possessed by the state which he has conquered, or by the ceding state.

With regard to treaties, it may be noted that the Treaty of cession of SchleswigHolstein of 30th October, 1864, expressly recognises that funds, such as funds for building prisons, for fire insurance, sinking funds, etc., pass over by cession to the cessionary. Spain has retained no claims for funds in Cuba, the Philippines, or Puerto Rico by the Treaty of 10th December, 1898, nor has England made any such reservation in any of the South African conventions or in the Anglo-German Treaty of the 1st July, 1890. The principle of the passing over of such rights was adopted in the settlement between the Government of Natal and the Transvaal over certain debts. The example is in point, for though the colonies are not states

of International Law, yet the case was deliberately argued and decided on the ground of International Law. The Transvaal handed over some territory to Natal, viz., the districts of Utrecht and Vryheid, in return for a payment of £700,000 (Parliamentary Paper, Cd. 941). It was found after the cession that there were debts due by farmers in the ceded territory secured by mortgages in favour of the Government of the South African Republic. It appeared that neither colony had taken the matter into consideration when the terms of cession were arrived at, and it was contended that Natal had no claim accordingly to the payments made. It was decided that the claim in International Law was sound, as with the territory went all rights not specially excepted and, therefore, the right to obtain repayment of the debts.

The question of the power of the conqueror to claim repayment of debts was raised in the case of the Elector of Hesse-Cassel. The question there was complicated with the question of the power of the mere occupier of conquered territory to recover debts due on contract or on bills, cheques, etc. The majority of writers are in favour of his power to do so, but on the other side are Heffter (para. 134); Phillimore (iii., 820), and Hall (p. 421). The Hague convention (Art. 53) on the whole favours the latter view, but it permits the seizure of bills payable on demand, or appears to do so. But that the conqueror who has consolidated his conquest can appropriate these debts, so far at least as they are due from his new subjects, is not denied by Heffter, Phillimore (p. 823), or Hall. The result is, indeed, self-evident; the conqueror seizes the property of the state, incorporeal property no less than corporeal. The question, however, is different when the property is a debt due by another state or by a debtor in another state. In the case of the Elector (see Phillimore, iii., 840 seq.) his own Court pronounced in 1818 that those subjects of the King of Westphalia who had paid to his exchequer and had received discharges could not be legally called upon to pay a second time. That this doctrine is correct appears to me not to be open to dispute.

With regard to debts due by persons or other states, the evidence for the theory of universal succession, which, it may be noted, appears to have taken its origin from the discussion of this question, is as follows: Quintilian (v., 10) refers to a case in which the Thessalians owed a hundred talents to Thebes. Alexander, on conquering Thebes, gave the Thessalians a release from this debt the Thebans, on being restored to their freedom, tried to claim the debt, and the question was disputed before the Amphictyonic Council. It has been usually held that the decision was in favour of the Thessalians, and Grotius (Book iii., Chapter VIII., sec. 4) quotes this instance in support of his theory that "incorporalia jura quæ universitatis fuerant fient victoris quatenus velit." Albericus Gentilis distinctly says Alexander was a "universalis successor in these circumstances. Vattel (Book iii., Chapter V., sec. 77) says that in case of conquest the conqueror acquires the debts due to the conquered state by third parties. On the other hand Hotman held that he was not a "universalis et juris successor sicuti heres aut bonorum possessor, sed particularis et rerum singulorum quia victores earum demum rerum domini sunt juri belli quæ manu capi possunt." (See for this Phillimore, iii., 832–835.)

Of course the legal value of Alexander's precedent is hardly a subject for serious discussion, more especially as no one really knows what the result of the dispute was. But if the decision was in favour of the Thessalians, then, undoubtedly, it can best be accounted for on the theory of universal succession. The matter was much canvassed in Count Hahn's case. There the facts were that Count Hahn paid to Napoleon, who had conquered the territories of the Elector of Hesse-Cassel, the amount of a mortgage debt due to the Elector. Count Hahn's estates were situated in the Duchy of Mecklenburg, and the Court of Registration of the Duchy made difficulty about recognising the release of the mortgage debt, inasmuch as it had not been paid to the mortgagee. Eventually it registered the cancellation of the mortgage under an order issued by the Duke of Mecklenburg,

who acted at the request of Napoleon. When the Elector was restored, on the downfall of the Emperor, to his dominions, he endeavoured to insist on the heirs of Count Hahn paying over again the mortgage debt on the ground that the previous release was illegal. Three German Universities, the then Courts of Appeal, decided against the Elector, and it has usually been considered that this case establishes the doctrine that a state's successor succeeds to rights of action possessed by its predecessor against persons outside its own territories, since otherwise it could not have released the debt due to Count Hahn. It is doubtful, however, whether it is necessary to accept this conclusion. (i.) The conclusion can only be justified if it is assumed that Napoleon claimed possession of these debts as successor to the Elector of Hesse-Cassel in his public capacity as Elector. It will be seen shortly that, though the circumstances of the case are not clear, it is at least as probable that he did not claim as successor but merely in virtue of the confiscation of the private property of the Elector. If the latter be the case it need hardly be said that the theory of universal succession gains no support from the case. The Court, indeed, expressly held that it made no difference to their conclusion whether the property were public or private, and this is no doubt true, but it does make, of course, the greatest possible difference in the nature of the deductions to be drawn from the case. (ii.) The real ground of the decision is suggested by a passage in Phillimore, whose discussion of this case forms his most important and valuable contribution to the question of state succession. He says (iii., 826): "If, indeed, an active seizure of enemy's funds did take place in neutral territory it must be admitted that these funds would be actually acquired and might be alienated by the conqueror, because it is the nudum factum upon which the occupatio bellica is founded." Now the Courts of Mecklenburg, acting on instructions from the Duke, permitted Napoleon to obtain payment of the debt. It appeared clear that the Court felt grave doubts as to the legality of the precedure, and it only consented to recognise the release of the debt on direct executive instructions, which, of course, it could not disobey. Thus, having permitted Napoleon to receive payment of the debt, it could not possibly insist upon the debt being again paid, so that all that the case proves is that if a state permits a successor to obtain an asset of his predecessor it cannot afterwards repudiate its own action. The only evidence for the doctrine of universal succession is the action of the Duke in causing his Court to recognise the release of the mortgage by payment of the debt to Napoleon, and that act was based on political and not on legal motives.

Jurists, as a rule, do not clearly distinguish the cases of internal and of foreign debts, and it is impossible to judge how far they really hold the theory that foreign debts pass ipso jure to the conqueror. In 1860 it was held by the Master of the Rolls in the case of Wadeer v. The East India Co. (7 Jurist N.S. 350), that if a foreign power takes prisoner an enemy, and thereby takes possession of documents and thereon founds a claim to a debt due from others to that enemy as a private individual, he has no right to exact payment of that debt, but if the debts are due to him in his sovereign character then the debts can be recovered. But this decision, taken in conjunction with the facts of the case, merely applies to cases within the jurisdiction of the successor, and therefore carries us no further than the decision given in the Court of Hesse-Cassel against the Elector in favour of those debtors whose debts had been released through payment to the King of Westphalia.

The position with regard to rights in personam possessed by the predecessor against individuals outside his jurisdiction appears to me to be precisely on the same footing as his rights in rem with regard to property situated outside his jurisdiction. In neither case is there any rule of International Law under which he is entitled to enforce these rights in the Courts of a third party, or to insist on the Government of the third party securing them for him by executive or legislative action. The Government may, if it thinks fit on ethical or political grounds, take such action, and the Courts may hold that the title of the successor is a good one,

but as the examples cited under head (c), which so far as they apply to contract are here also relevant, show, if they are prepared to recognise the title of a successor they will only do so on such conditions as seem to them equitable, and these conditions would certainly differ from any theory of International Law. Nor, indeed, is it likely that any successor will be anxious to attempt to claim in a court of law such rights, for he would obviously expose himself to the humiliating position of having his title to be a successor scrutinised by perhaps an unfriendly power, which might well prefer to support the title of the previous sovereign (cf. dicta in 1903, Transvaal Supreme Court Reports, 400 seq.). The Transvaal Government, accordingly, while insisting on recovering in its own courts debts due on mortgages, etc., to the Government of the late South African Republic (1905, Transvaal Supreme Court Reports, 582), has apparently made no effort to recover sums of money due to the Republican Government by persons in other states.

The result of this investigation, therefore, is that the state succeeds to the property of its predecessor, whether domain public or private, or archives or claims founded on contract, in so far as that property is locally situated in the conquered or ceded territory, and so obtainable by action in its own courts, provided of course that special rules are not arranged by the terms of cession. In the case of taxes there is no succession, but a re-imposition by sovereign authority. If the property is situated outside its jurisdiction no legal rule of succession exists.

In the case of monarchical states the successor does not, of course, obtain the private property of the sovereign if the law of the state recognised a distinction between such private property and public property. This is probably a law of International Law. Of course the successor can ignore International Law and appropriate the property, but it does not become his by succession. The treaties recognising this principle are, therefore, probably declaratory. Such is the treaty between France and Monaco, of 2nd February, 1861, regarding the cession of Mentone and Roccabruna; that of 3rd October, 1866, regarding the cession of Venetia by Austria to Italy, Art. 22; that of the Great Powers with Turkey of 24th May, 1881, Art. 5; and that between Greece and Turkey of 2nd July, 1881, regarding Thessaly, Art. 5. So in the case of the separation of Belgium from Holland, the King of the latter state preserved his share in the Bank of Brussels (Huber, p. 266). Calvo (para. 2481) declares "the right of conquest, to judge from the Court of Cassation at Paris (Sirey, 17-1-217), affects only the property of princes which they possess in their quality of princes, and not the possessions which are their private property." The same view is held by Rivier (ii., 347) and Holtzendorff (ii., 38). A similar doctrine has been judicially held in England (see the case of Wadeer v. The East India Co. cited above).

On the other hand, the case of the Elector of Hesse may be cited as an instance of the confiscation of private property by the successor. It does not seem possible to determine with certainty the exact character of the property seized, because the legal title of the French Emperor was not made clear at the time. The statement made was (Phillimore, iii., 843) that, in consequence of the conquest of the Electorate of Hesse-Cassel, the Emperor had confiscated to the profit of his extraordinary domain the debts appertaining to the ex-Elector of Hesse and the state and provinces of which he had taken possession, and he declared that he had decided that no discharge was to be obtained save from the treasury of his extraordinary domain. Hall holds (pp. 567, 572) that the confiscation was made on the ground that the Elector was a subject in arms against his sovereign by conquest (cf. Phillimore, iii., 847). If this is the case of course there would be no exception to the rule respecting the inviolability of the private property of monarchs in the case of conquest. This view, indeed, appears to be the correct way of considering the case of Count Hahn, and with it disappears also the chief support of the argument for a succession to the debts due to the predecessor from persons beyond the jurisdiction.

CHAPTER VIII.

STATE SUCCESSION WITH REGARD TO CONTRACTUAL AND OTHER OBLIGATIONS.

THE rights in rem possessed by individuals against the state are, of course, possessed by them against all persons, and may more conveniently be considered in Chapter IX. This chapter will accordingly be confined to rights in personam possessed by individuals against the state. These rights may be divided into rights ex contractu, including rights quasi-ex contractu, and rights ex delicto; and it will be convenient to consider separately among contractual right questions regarding (a) the public debt; (b) concessions and ordinary administrative contracts; (c) deposits, etc.; (d) pay and pensions of officials.

I. The theory of universal succession has its chief importance in its application to these problems, and it is not to be denied that there is a most formidable array of juristic opinion in favour of the doctrine that a state succeeds to the obligations as well as to the rights ex contractu of its predecessor. Something must, no doubt, be deducted from the weight of that opinion, in view of the fact that as Hall (p. 93, n.) says: "The subject (of state succession) is one on which writers on International Law are generally unsatisfactory. They are incomplete, and they tend to copy one another." Again, it may be doubted exactly how far we can press the dicta of some of these writers. As has been seen above Grotius combines the doctrine of universal succession with a view that the conqueror has full power over the disposal of the gains of his conquest.

out.

The evidence in support of the theory does not, it seems to me, really bear it Its main basis is the provisions of treaties of cession. Now (a) it is logically impossible to prove any rule of International Law from treaties. It is perfectly possible that a treaty may contain, just as ordinary contracts often contain, provisions which would legally exist without express stipulation. It may be that, when two countries stipulate that the cessionary shall bear a proportionate part of the public debt of the ceding state, they merely ex majori cautela put in express terms a rule of law; but it is logically equally possible that the stipulation is intended to exclude a rule of law that a ceding state must bear all its own national debt, even although part of it appertains to the ceded territory, and then to argue from the treaty to a rule of law would be like endeavouring, as is frequently done in this country, to establish a trade custom by means of a number of individual contracts containing the rule alleged as a custom as an explicit stipulation. It may be argued that a consensus in a number of treaties points to such a strong feeling as to the proper rule as to justify us in calling the rule a law. But this brings us to the great question (b) how the weight of treaties is to be gauged. It is notorious that for every rule sought to be established by precedents of treaties it is possible to adduce precedents to the contrary. Treaties are frequently only intelligible in the light of history; the treaties among the German states which were annexed to the Vienna Congress Treaty of 9th June, 1815, were in the nature of European settlements, and must be expected to differ from such treaties as that between Prussia and Austria in 1866 or France and Germany in 1871. The practice, too, of a great nation must overrule that of petty principalities. For instance, the Franco-German Treaty of 1871 transferred no part of the general debt of France to Germany, and thereby threw grave doubt on the rule which, as will be seen below, is supported by a great deal of evidence of other treaties. Again, the Treaty between Spain and the United States, which terminated the war of 1898, makes no provision for the United States taking over the local debt of