Orcesi supplied nine pairs of posthorses with postillions to the order of the Ministry of War in Parma. After three days three pairs were returned. On the 9th June the reigning Duchess of Parma fled, and on the 11th June the Parma troops laid down their arms. The remaining six pairs of horses which had been used for military purposes were then returned. Parma was incorporated in the Kingdom of Italy by the decree of the 18th March, 1860 (see Annex 1)* It is not clear from the terms of the judgment whether or not under the laws in force in Parma at the time Orcesi had a right to compensation, but the superior administrative authority of the ex-Duchy had admitted his claim and assessed it at 1,110 lire. It was not paid, and Orcesi brought an action against the Italian Government. It was held by the Court of Cassation affirming the Court of Appeal at Parma that the Italian Government were liable to pay the claim.

These decisions are quoted because it is sometimes. asserted in the text books on international law that the Italian Courts have recognised to the fullest possible extent the doctrine of State succession, but it is clear that neither of them support the contention that Great Britain is liable to pay compensation for the torts of the South African Republic. In the first case the claim had been definitely rejected by an autocratic Government which was supreme within its territory, and there was, therefore, no claim in existence at the time of the annexation. In the second case the claim had been admitted and was at the

† E.g., Westlake, "International Law," Vol. 1, "Peace," p. 80. No decisions have been traced which justify Professor Westlake's remark, "The Italian courts, however, while admitting that this would be the rule "in the case of the total incorporation of a State as happened in Naples "or Tuscany, hesitated to lay it down for cases of partial cession The decisions of March 30. 1877, and May 25, 1896, to which he alludes seems both to refer to cases of partial cession affected by the Treaties of

tions, but only in suits where the obligation arose out of contract, and the decisions, therefore, are of no assistance

in this case.

Various decisions have been given in Italy in which the question of State succession has been considered. Most of the cases arose out of the transfer of the territories of Lombardy and Venetia from Austria to Italy under the Treaties of Zurich (1859) and Vienna (1866) each of which contained an article: "Le Gouvernement de Sa Majesté Sarde "succède aux droits et obligations résultant de contrats régulièrement stipulés par l'Administration Autrichienne pour des objets d'intérêt public concernant spécialement le 'pays cédé." Two cases, however, have come before the Court of Cassation where the suit was brought against the Italian Government in respect of claims against States which had disappeared as the result of annexation, and the decisions. in these cases are printed as Annexes 8 and 9.*

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The first is that of the Ministers of the Interior and of Finance versus the Commune of Capri, which was decided in 1885. One of the Communes of the ex-Duchy of Modena had furnished supplies to the volunteers of the Provisional Government of 1848. The previous Government repudiated any liability to reimburse the Commune for this expenditure. Modena was annexed by Italy in 1860 (see Annex 1)‡ and suit was brought by the Commune of Capri to recover the amount of this expenditure from the Italian Government. It was held on appeal that as the previous Government had declined to admit liability, no liability accrued to the Government of Italy.

The second case is that of the Ministry of War v. Orcesi, a decision given on the 21st December, 1881. The facts in that case were that on the 30th May, 1859,

*The judgments in these cases were supplied by the courtesy of the Italian Government, and translated by the Central Translations Institute of Caxton House, Westminster, London.

† Annex 8, p. 178.

‡ p. 21.

Orcesi supplied nine pairs of posthorses with postillions to the order of the Ministry of War in Parma. After three days three pairs were returned. On the 9th June the reigning Duchess of Parma fled, and on the 11th June the Parma troops laid down their arms. The remaining six pairs of horses which had been used for military purposes were then returned. Parma was incorporated in the Kingdom of Italy by the decree of the 18th March, 1860 (see Annex 1.)* It is not clear from the terms of the judgment whether or not under the laws in force in Parma at the time Orcesi had a right to compensation, but the superior administrative authority of the ex-Duchy had admitted his claim and assessed it at 1,110 lire. It was not paid, and Orcesi brought an action against the Italian Government. It was held by the Court of Cassation affirming the Court of Appeal at Parma that the Italian Government were liable to pay the claim.

These decisions are quoted because it is sometimes asserted in the text books on international law† that the Italian Courts have recognised to the fullest possible extent the doctrine of State succession, but it is clear that neither of them support the contention that Great Britain is liable to pay compensation for the torts of the South African Republic. In the first case the claim had been definitely rejected by an autocratic Government which was supreme within its territory, and there was, therefore, no claim in existence at the time of the annexation. In the second case the claim had been admitted and was at the

p. 21.

† E.g., Westlake, "International Law," Vol. 1, "Peace," p. 80. No decisions have been traced which justify Professor Westlake's remark, “The Italian courts, however, while admitting that this would be the rule "in the case of the total incorporation of a State as happened in Naples or Tuscany, hesitated to lay it down for cases of partial cession

66

The decisions of March 30. 1877, and May 25, 1896, to which he alludes seems both to refer to cases of partial cession affected by the Treaties of

time of the annexation a debt, and not a mere claim for unliquidated damages.

The question of State succession is not dealt with satisfactorily in the text books on international law. The older jurists lay but little stress upon it. The more modern works contain a considerable amount of speculation on the subject, but the inconsistency between the various doctrines enunciated by these writers is of itself conclusive proof that there is no such rule of international law as that for which the United States now contend. The principles they lay down are usually couched in rather vague and general language, and there is scarcely ever any attempt to think out in detail the application of these principles or to deal with the difficulties which their application would entail.

Hall ("International Law," 4th edition, p. 98, footnote), is forced to make the following admission :-.

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The subject is one upon which writers on international law are generally unsatisfactory. They are incomplete and they tend to copy one another."

There is practically no attempt in the works of the better known writers to quote precedents or authorities for their statements, and some of those who enunciate the principle in the crudest and most far-reaching terms, such as Huber ("Die Staatensuccession "), are forced to admit that their rules are seldom, if ever, observed in practice. An extract from Keith's "Theory of State Succession" is given in Annex 10* and shows how unsatisfactory are the conclusions drawn by most of the writers.

The doctrine of the universal succession adopted by so many writers is usually deduced by analogy from the principles of the Roman law and arrived at by treating the sum total of the rights and obligations of the former

p. 188.

State as an hereditas to which the new State succeeds. Such a theory cannot assist the United States in an endeavour to render Great Britain liable for the torts of the South African Republic, because in Roman law liability to an action ex delicto did not pass to the heirs :

"Non omnes actiones autem quae in aliquem aut ipso jure competunt aut a praetore dantur, et in heredem aeque competunt aut dari solent: est enim certissima juris regula ex maleficiis poenales actiones in heredem non competere veluti furti, vi bonorum raptorum, injuriarum, damni injuriae.'

The principle adopted in the common law is the same; actio personalis moritur cum persona. An attempt, therefore, to maintain that under the circumstances in which Great Britain has replaced the South African Republic in South Africa the former has become the heir of the latter will not establish any liability on the part of Great Britain for the torts of the Republic, because, even if it were true, liability in such cases would not pass to the heir.

In reality, however, there is no real analogy between the succession to an hereditas and the acquisition of the territory and property of another State by annexation and conquest. Conquest and annexation is merely an act of appropriation by force; the title of the conqueror is founded on might; his title to the property of the former Government rests upon the fact of physical control and his expressed intention to maintain it. He does not necessarily become possessed of all the property of the former State, for there may be some which never comes within his power. What the conqueror annexes is not the former State, but the territory and the property of that State. When once this principle is realized, it will be seen how

* Actions which will lie against a man under either the civil or the prætorian law will not always lie against his heir, the rule being absolute that for delict-for instance: theft, robbery, outrage, or unlawful damage -no penal action can be brought against the heir. "Institutes of Justinian," Book IV, Title 12.