1777, Portugal ceded to Spain the islands of Annobon and Fernando del [*293] CCLXX Gifts of territory were not uncommon in earlier times; for, not to mention the handsome presents, already adverted to, of different parts of the globe made by the Pope to Spain and Portugal, John XVIII., in 1004, offered the island of Sardinia to whomsoever would take it from the Saracens; and Boniface VIII.,(h) in 1297, bestowed the same island, together with Corsica, upon James II. of Arragon. In 1485, Queen Charlotte of Cyprus(i) gave that island to Duke Charles I. of Savoy; and, in 1530, the Emperor Charles V.(k) gave Malta to the Knights of St. John. We may pass over the earlier alleged donations of Pepin and Charlemagne to the Roman See, and the acquisitions of the French Crown by gift, such as the province of Dauphiné in 1349. CCLXXIIThe history of Louisiana furnishes a more recent and very remarkable instance of the practical application of some of the foregoing modes of acquisition by independent nations. By a secret convention (l) (never, it is said, yet printed) between the Courts of Versailles and Madrid, on the 2d of November, 1762, New Orleans, together with that part of Louisiana which lies on the western side of the Mississippi, was ceded to Spain. The object of this cession was to indemnify Spain for the loss of Florida, which, by the preliminaries of the memorable Treaty of Paris, (m) she had given up to Great Britain; and, in spite of the remonstrances of *the French inhabitants of Louisiana, Spain took complete possession of this province in 1769. [*294] By a secret Treaty concluded between the French Republic and Spain, at Saint Ildefonse, on the 1st of October, 1800, Spain engaged to retrocede to France,-six months after the fulfilment of certain conditions relative to the Duchy of Parma, in favour of the daughter of the King of Spain, the province of Louisiana as at that time possessed by Spain. As soon as this Treaty was made known, Great Britain and the United States took alarm, and determined to oppose to the utmost its completion. Buonaparte, then First Consul, urged by the difficulty of his position, and partly perhaps also by his need of pecuniary resources, resolved upon the expedient of selling his new, or rather inchoate, ac (9) Annual Register, vol. xcii. p. 391. Art. i. p. 14. (k) Günther, vol. i. p. 96. (1) Koch, Hist. des Traités, c. xvii.; Traités de Paris et de Hubertsbourg, vol. i. p. 362. (m) The secret convention was signed on the same day as the preliminaries of the Treaty. The Treaty itself is not signed till 1763. + + quisition to the United States. To this bargain, however, he gave the name of Cession, and it was effected by the Treaty of Paris, of 1803, between France and the United States of North America. The words of the Convention were remarkable : : “Attendu, y est-il dit, que par l'article 3 du Traité conclu à SaintIldefonse, le 9 vendémiaire, an IX, entre le Premier Consul de la République Française et S. M. C., il a été convenu ce qui suit: [ici est inséré l'article ;] et comme, par suite dudit traité, et spécialement dudit art. 3, la République Française a un titre incontestable au domaine et à la possession dudit territoire, le Premier Consul de la République, désirant de donner un témoignage remarquable de son amitié aux dits Etats-Unis, leur fait, au nom de la République Française, cession, à toujours et en pleine souveraineté, dudit territoire, avec tous ses droits et appartenances, ainsi et de la manière qu'ils ont été acquis par la République Française, en vertu du traité susdit, conclu avec S. M. C."(n) The peculiarity of this form arose from the fact that the Treaty of October, 1800, had never been formally executed *by either of [*295] the contracting parties. The ninth article of this Treaty provided that two particular conventions, to be signed the same day, should be considered as inserted in the Treaty itself. The first contained the stipulation that sixty millions of francs should be paid to France; the second, that all claims upon France by the United States for illegal captures or other matters should be considered as discharged. It belongs to the province of the historian to record the ineffectual regret of deceived and injured Spain, and the sagacity of the United States in profiting by the troubles of Europe, both at this period and subsequently by the acquisition of Western Florida. But it should be observed here that the instance illustrates national acquisition by gift, sale, and exchange, and that the title of the United States to this acquisition has never been questioned. CCLXXII.The Election of an individual to the sovereignty of a State, though not strictly speaking a mode of acquiring territory, may indirectly be the cause of it, when the elected person is already ruler over an independent kingdom to which the new State becomes united. Thus the Poles, by the election of the Duke Jagello in 1386, united Litthauens to their own kingdom. And this result may ensue not only in the case of an elective sovereignty, but also in the instances, not infrequent in history, of the failure of the first line of sovereigns, and the consequent necessity of choosing a collateral branch. (0) Towards the close of the fourteenth century(p) (1375) the race of king Svend Estrithson became extinct in the person of Waldemar IV. His grandchild Olaf, the son of his youngest daughter Margaret, wife of the King of Norway and the asserted heir of Sweden, was chosen successor to the throne, because he would eventually unite Norway with Denmark.(q) (n) Koch, vol. ii. p. 322. (0) Günther, vol. ii. p. 97. (p) Dahlman's Geschichte, von Dänemark, 2 Band, pp. 46-75. (9) The senators were first divided, some wishing for the acquisition to be acquired by the Union; others objecting that Denmark, an elective monarchy [*296] *Olaf died in 1387; and his ambitious and energetic mother The Election of the house of Brunswick to the throne of Great Britain CCLXXH. Marriage (contrat de mariage) of the hereditary gover-+ nor of that country has been frequently a mode of acquisition of new territory to that country, sometimes by the incorporation of a province, sometimes by the union of two distinct and independent kingdoms. The wife of Charles II. of England brought with her Tangiers and Bombay as a dowry, and the latter has proved no unimportant addition to the Empire of Great Britain. Philip III. of France acquired to the French throne the countries of Carcasonne and Bezier, the dowry of his wife, Isabella of Arragon. Alphonso III. of Portugal acquired the province of Algarves to the throne of that country, as the dowry of his wife, the natural daughter of Alphonso X. of Castille.() Philip IV. of France acquired the independent kingdom of Navarre The House of Hapsburg owes its power and station, partly to the [*297] Mary of Burgundy, the daughter and sole heiress of the last Duke of that name, brought with her the magnificent dowry of the Low Countries, including the Franche-Comté, Flanders, and Artois, to the Emperor Maximilian.(s) The son of this marriage, Philip the Handsome, married the sole heiress to the throne of Arragon and Castille, so that it has not been untruly sung by the Poet of modern date, "Bella gerant alii, tu felix, Austria, nube; Nam quæ Mars aliis, dat tibi regna, Venus." Sometimes national rights and claims have been conferred by marriage. At the peace of Noyon, in 1516, Francis I. of France promised to give with his daughter on her marriage with the then King Charles of Castille, all his rights and title to the kingdom of Naples; and in the abortive matrimonial negotiations between the two thrones, it was stipulated that certain lands should be given in compensation for the non-fulfilment of a contracted marriage by the party causing it.(t) (ein freies Wahlreich), would thereby be subjected to Norway, an hereditary king- (r) Günther, vol. ii. p. 98 (Abtretung.) (t) Günther, vol. ii. p. 99. + The marriage of sovereigns may or may not occasion a permanent incorporation of territories, according to the laws of the respective kingdoms; by which will also be governed the rank of each sovereign and their respective powers and authorities. The instances of Philip and Mary in England, Francis II. and Mary in Scotland, William and Mary in the British dominions, will readily occur as illustrations of this remark.(u) CCLXXIV. Successio ab intestato (Succession) is also among the means of national acquisition. It is true that the *rules of [*298] Civil Law framed for individuals are not, strictly speaking applicable to nations.(c) The death of a nation would be the dissolution of its social and political elements; and there would be no next of kin to take succession to the property, which it had occupied, while its corporate character remained. But as States, represented by monarchs, have been allowed to acquire property through the marriage of their sovereigu, so have they been allowed to acquire property through his personal relation, as next of kin, to the sovereign of another territory in which the government is hereditary, upon the decease of that sovereign without any nearer relative. The question has been much discussed by writers on the Law of Nations and upon the general principles of Jurisprudence -whether the succession of the next of kin to an intestate person be a law of Nature, or merely an institute of Civil Law.(y) It is certain, however, that the death of the ruler of the State, with- (u) Günther, vol. ii. pp. 100-103. Ib., and valuable notes. (y) Grotius, 1. ii. c. vii. s. iii. p. 277. Grotius is among the supporters of the former opinion, founded on the presumption that the deceased person could not have intended his property to have been lost, but must have wished it to be given to those who were dearest, that is, according to all presumption,-those who were nearest to him. His commentator, Cocceius, thinks that the rule of succession in Europe arises from the necessity of the case; viz., that all land being occupied by somebody, the relations of the deceased would be without support if they did not succeed to his prospects. Sam. Cocceii Introd. ad Henr. Cocceii Grot. illustr. diff. proem. x. ss. 12 et 13: "Cum rebus terræ in universum occupatis nihil amplius supersit quod occupari possit, vel non quantum sufficit; homines occupatis rebus nati; succedunt, in occupationem parentum."-Günther adopts this reasoning, vol. ii. p. 103. Puffendorf, 1. iv. c. xi. De Success. ab Intestato. puted succession to the government of kingdoms. No educated person is ignorant of the wars of England under the Edwards and Henries, for the crown of France, or of those horrible thirty years of warfare, which originated in the claim of the Elector Palatine of Bohemia, and which desolated Germany till the Treaty of Westphalia,-or the general distraction and prolonged disturbance of the peace of Europe which arose out of the disputed succession to the House of Spain, and was closed by the Treaty of Utrecht. The claim of the sovereign of another nation is rarely without the pretext of support from a party in the country which is the object of his ambition. When Philip II. of Spain seized on Portugal, claiming through a younger daughter of King Henry, with whom the male line became extinct in 1580, to the exclusion of the House of Braganza, allied to an elder daughter, he was supported by the alleged free choice of the magnates of Portugal. The unfortunate Elector Palatine was supported in his pretensions to the kingdom of Bohemia by the choice and approbation of the States of the realm. A large party, both in Great Britain and Ireland, were favourable to the claims of the Pretender during the reign of the first two Georges. A similar remark is applicable to the Pretender to the thrones of France, Spain, and Portugal in our own times. [*300] *CCLXXVI.Testamentary disposition has unquestionably been a mode of territorial acquisition by nations, in the persons of their governors. But it can only be so when the kingdom is proprietary a state of things which it has been already observed (2) cannot be said now to exist in Europe; not even, it is presumed, in Russia; though it might happen that the nation adopted and ratified the will of the deceased sovereign. The famous will of Charles II. of Spain, made (2d October, 1700), under the superintendence of the Cardinal Portocarrero his minister, and after receiving the advice of the Pope and of the most learned theologians-that will by which he bequeathed dominions upon which the sun never set, to the second son of the Dauphin of France— is a remarkable instance of the exercise of this power, but one which is not likely to be imitated. In truth, the only sound rule upon the whole subject of these modes of acquisition, either testamento or ab intestato, which can find its place in a work of International Jurisprudence, is this, that the voice of the people of the country, concerning whose government the dispute arises, should, through the legitimate channels of its own constitution, decide the question for itself in such a manner as not to threaten the security of other nations. Conquest, fortified by subsequent treaty, gives a valid International title to territory; but this subject belongs to a later part of this work. The case of the acquisition of a portion of the dominion of Saxony by Prussia, (a) in 1814, is so anomalous, that it is impossible to class it (z) Vide antè, p. 284. (a) See Talleyrand's admirable Mémoire raisonné on this subject, Trait. de Dipl., De Garden, t. iii. p. 146. AUGUST, 1854.-16 |