and Borneo under England, Tunis and Morocco under. France, and Cuba and Panama under the United States. Referring to protectorates, so called, in uncivilized regions, I quote the following from Westlake: "In recent times," he says, "a practice has arisen by which in such regions civilized powers assume and exercise certain rights in more or less well-defined districts, to which rights and districts, for the term is used to express both the one and the other, the name of protectorate is given by analogy. The distinctive character of those rights are: first, that they are contrasted with territorial sovereignty, for as such sovereignty extends there is the state itself which has acquired it, and not a protectorate exercised by that state; secondly, that the protectorate first established excludes all other states from exercising any authority within the district, either by way of territorial sovereignty or protectorate-that is to say while it lasts, for the question remains whether a protectorate, like an inchoate title to territorial sovereignty, is not subject to conditions and liable to forfeiture on their non-fulfilment; thirdly, that the state enjoying the protectorate represents and protects the district and its population, native and civilized, in everything which relates to other powers. The analogy to the protectorate exercised over states is plainly seen in the last two characteristics-exclusiveness and representation with protection. It is less visible in the first character, for, where there is a protected state, the territorial sovereignty is divided between it and the protecting state, according to the arrangements existing in the particular case, while in an uncivilized state it is in suspense. "1 44. The North American Indians and the Native Princes of British India. The relation existing prior to 1871 between the United States and the North American Indians was, perhaps, unlike that of any other peoples. Of this condition, Chief Justice Marshall said: "Though the Indians are acknowledged 1 Westlake, "Int. Law," p. 178. to have an unquestionable and heretofore unquestioned right to the land they occupy until that right shall be extinguished by a voluntary cession to our government, yet it may well be doubted whether these tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly perhaps, be denominated domestic dependent nations."1 In 1871 it was enacted by Congress that no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation; but provided that no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March 3, 1871, shall be invalidated or impaired. It was probably under the latter provision that the State Department, in 1894, ruled, in a letter to the British ambassador in relation to the case of British subjects who claimed that they were unjustly removed from the Choctaw country, that "those people who go into that country must be held to have done so with full knowledge of those treaties and of the Choctaw laws and must accept the consequence if they are found to be there without proper authority."2 The conditions existing between the United States and the North American Indians bear a resemblance to those existing between Great Britain and the native princes of British India. The latter, though more civilized and more autonomous, like the North American Indians, have no relations with foreign powers or with one another. In 1891 the government of India declared that the principles of international law have no bearing upon the relations between the government of India, as representative of the Queen Empress and the native states under her protection. The paramount supremacy of the former presupposes and implies the subordination of the latter.3 1 C. J. Marshall, Cherokee Nation v. State of Georgia, 1821. * Westlake, "Chapters on Int. Law," p. 213. TOPICS AND REFERENCES 1. Sovereign States Subjects of International Law T. J. Lawrence, "Principles of International Law," pars. 34-37. Wheaton's "International Law," par. 16. Moore's "Digest," vol. I, par. 3. 2. Definition and Characteristics of Sovereign States Holland, "Jurisprudence," 44-46. Scott, "Cases of International 3. Form of Government or Religion Not a Consideration in Foreign Relations Phillimore, "International Law," I, 3d ed., 81. Westlake, "Chapters," etc., 141. Oppenheim, part I, chap. I. 4. Legal Equality of Sovereign States Vattel, "Preliminaries," par. 18, 21. Walker, "Science of International Law," 115. Davis, "International Law,” 3d ed., 36. 5. Status of States in a Federal Union with Respect to International Law and Treaties Chinese Exclusion Act, U. S., 581, 604. Hart, "Introduction to Federal Government," 178-192. Halleck, vol. I, Baker's 4th ed., 78. 6. Communities, Corporations, etc., That Are Not Subjects of International Law Lorimer, "Institutes, etc." (1883), bk. II, chaps. II and XVII; bk. III, chap. II. Hershey, "Essentials," 96. Baty, "International Law in South Africa," chap. II. 7. Status of the Vatican Halleck, Baker's 4th ed., vol. I, 111, 128, and 153. Westlake, 2d ed., I, 37-39. Oppenheim, vol. I, 2d ed., 159-162. 8. Neutralized States Hertslet's, "Map of Europe by Treaty," vol. II, 979-998, 1415 to 1450; vol. II, 180. Wheaton's "Elements of International Law," pars. 416-421. Walker, "Science of Int. Law," 448-451. 9. Part-Sovereign States and Protectorates Moore's "Digest," vol. I, 18. Westlake, "Int. Law," 2d ed., part 10. Status of North American Indians Marshall in Cherokee Nation v. State of Georgia, 1821, 5 Peters 11. Status of Native Princes of British India Westlake's "Int. Law," 2d ed., part I, 41-43. Hall, "Int. Law," 27-28. Tapper, "Our Indian Protectorate." CHAPTER V FORMATION, RECOGNITION, AND CONTINUITY OF STATES. CHANGES OF GOVERNMENTS. DE FACTO GOVERNMENTS. EXTINCTION OF STATES 45. The Formation of States. It is generally said that questions with respect to the origin of states belong rather to the province of political philosophy than to that of international law. This may be so in an abstract sense, but it can hardly be claimed to be so in the question of the formation of a modern sovereign state in its historical and legal phases. The matter of its recognition as a sovereign state and its relations thus established with other states comes clearly within the domain of international law. The actual system of sovereign states, or the family of nations, in the civilized world dates from the peace of Westphalia in 1648, and the members of this system or family in Europe at that date were members because of their existence as states at the time. "The modern international society was thus founded," says Westlake, "and the states which belonged to it in 1648, including those which continue their identity under different names and with varied limits, as Savoy became Sardinia, and Sardinia Italy, may be called its original members. Since 1648, without reckoning the growing intercourse with states of Oriental civilizations, new members have been added to the full international society by many different processes."1 The following are circumstances and conditions under which states can in the present day attain the qualities and charWestlake, "Int. Law," part I, p. 43. |