under any known or legitimate category of International Acquisition. If it belong to any, it is to *that of Conquest and Treaty just mentioned; but, in truth, it belongs to the class of transactions. of which we must say, [*301] "Non ragionam di loro, ma guarda e passa."(b) with, however, a strong protest that no axiom of International Law is to be deduced from an act, which seems, upon all the principles of that science, indefensible. [*302] 328 *CHAPTER XV. ACQUISITION OF RIGHTS. CCLXXVI The property of a State may not only be alienated, but may also be subjected to obligations and services in favour of another State; as the property of an individual may be burdened and encumbered in favour of another individual. (a) This may, of course, happen in various ways; but it most frequently occurs when a State, having contracted pecuniary obligations towards another State, has mortgaged its revenues, or pledged a portion of its territory, as a security for the payment of its debts. Thus, among other instances, the United Provinces of the Netherlands hypothecated Vlissingen, Rameken, and Briel to England, in 1585. Denmark, in 1654, hypothecated the province of Holland to Sweden, as a security for the peace then concluded. (6) Weimar appears to have been pawned, so to speak, to Mecklenburg in 1803,(c) and Corsica by Genoa to France in 1768. We are not speaking now, it will be observed, of debts contracted by States to Individuals (a question to be dealt with hereafter), but to other States. [*303] *CCLXXVIL It sometimes happens that the debt between the Government of one country and the Government of another is made the subject of a treaty. Sometimes the Government of a third Power guarantees the payment of the debt. (d) In 1776 Russia guaranteed a loan of 500,000 ducats contracted by the Polish Government. By the 97th article of the Treaty of Vienna (1815), the maintenance (b) Dante, Inferno, III. 51. (a) Günther, vol. ii. pp. 153–161. Vattel, 1. ii. c. ii. s. 80. Heffters, p. 133. s. 71. Klüber, vol. i. s. 140. (b) Günther, vol. ii. p. 153. Dumont, C. Dipl. t. v. s. i. p. 454. (e) Martens, Rec. vol. viii. s. 54. Ib. p. 229. See too, Schmauss, C. J. G. vol. ii. pp. 1140, 1150. (d) Vattel, 1. ii. c. xvi. s. 235–261. Vide post, Chapter on TREATIES. Klüber, s. 155-157., n. d. Günther, vol. ii. pp. 243-254. of the credit and solvency of the establishment called the Mont-Napoléon, at Milan, was especially provided for. CCLXXVI. States are sometimes placed in such physical relations to each other, that some limitations of the abstract rights of each necessarily flow from their natural relations, or from the reason of the thing. Thus a State is bound to receive the waters which naturally flow within its boundaries from a conterminous State. This obligation belongs to the class of "servitutes juris gentium naturales," and here the provisions. of the Digest(e) and Institutes may be said to be identical with those of International Law.(ƒ) CCLXXIX. A State may voluntarily subject herself to obligations in favour of another State, both with respect to persons and things, which would not naturally be binding upon her. These are "servitutes juris gentium voluntaria."(g) *In the language of Jurisprudence, when a thing is subject to [*304] the exercise of a right by a person who is not the master or proprietor, it is said to serve (res servit) or yield service to that other person.(h) CCLXXX The doctrine of Servitus occupies an important place in the Roman Law; and in some shape, and under some appellation or other, exists of necessity in the jurisprudence of all nations.() This obligation to service constitutes a right in the obligee or the person to whom it is due, and it ranks among the "jura in re," while it operates as a diminution and limitation of the right of the proprietor to the exclusive and full enjoyment (libertas rei) of his property.(k) According to the Roman Law, the Servitus consisted either-1. in not doing something (in non faciendo), and was negative (servitus negativa); or 2. in suffering something to be done (in patiendo), and was affirmative (e) "Semper hæc est servitus inferiorum prædiorum ut naturâ profluentum acquam excipiant."-Dig. xxxix. t. iii. 1. s. 22. (f) Heffters, s. 43: "Worauf sich unbedenklich auch die Vorschriften des Römischen Weltrechtes anwenden lassen." (9) J. N. Hertius, in diss. de servitute naturaliter constitutâ cum inter diversos populos, tum inter ejusdem reipublicæ cives, (Prolegom. s. 3. in ejusd. Comment. et Opercul. v. ii. t. iii. p. 66.) defines servitus as "jus in re alienâ, alteri à naturâ constitutum, cujus vi et potestate dominus istius rei ad alterius utilitatem, aliquid pati aut non facere in suo tenetur."-De necessitate et usu Juris Gentium, &c., Wieland et Foerster, Lipsiæ, s. xvi. p. 37. (h) Dig. viii. passim. Instit. ii. 3. Cod. iii. t. 34. Domat, 1. i. t. 12. s. 1. Savigny, Recht des Besitzes, Fünfter Abschnitt, p. 575. Mackeldey, Lehrbuch des R. R., s. 274. u. s. w. Schilling, Pandekten Recht, s. 446. u. s. w. Puchta, Instit. s. 252. (i) "Aussi les servitudes ont-elles été reconnues partout où les hommes se sont fixés d'une manière permanente en formant des associations durables."—Ahrens, Philosophie du Droit, p. 324. "When a thing or property was free from all servitus, it was called res optima maxima."-Dig. 1. t. 16. s. 90, 169. Cicero, De Lege Agrar. iii. 2. (k) "Cum quis jus suum deminuit, alterius auxit, hoc est ei servitutem ædibus suis imposuit."-Dig. xxxix. t. 1. s. 5, 9. + + + 十 (servitus affirmativa): but it could not consist in the obligation to do something (in faciendo). Not that the owner of a thing might not be obliged to do something in relation to that thing, for the benefit of another person; but that this obligation *assumed a technically [*305] different character, and was not a "jus in re."(1) It is not, however, necessary to examine with greater minuteness the provisions of the Roman Law upon this subject, though some mention of the general doctrine was a necessary preface to the application of it to the case of States; for some States, as well as individuals, have been and are entitled to exercise rights of this description, and others therefore are and have been subject to the obligations which correspond to them. CCLXXXI The servitutes juris gentium must, however, be almost always the result either of certain prescriptive customs, or of positive convention. The entire liberty which each State naturally possesses over its own property cannot be curtailed upon presumption. The jus in re alienâ is a derogation from the general principle of law, and requires, as a special and extraordinary right, the strictest proof of its existence. CCLXXXI History furnishes many examples of these servitutes +voluntaria, both as to persons and things. As to persons, the stipulations of various Treaties between England and France provide that the Stuart Pretender should not be permitted to reside in France. (m) And when Spain confirmed by Treaty the acquisition of Gibraltar to England, she stipulated that neither Moors nor Jews should be allowed to reside there.(n) As to places, there are various instances of servitutes both negative and affirmative, but chiefly of the latter description. Of the negative kind was the engagement of France, the subject once of so much anxiety and so many *conventions, that the port and fortifications of [*306] Dunkirk should be destroyed.(o) British and Dutch Commis sioners were empowered by Treaty to superintend the execution of these demolitions, and though ejected in time of war, they returned with the restoration of peace, and were only finally withdrawn, in compliance with the provisions of the Treaty of Versailles, 1783.(p) By the Treaty of Paris, 1814, (q) it was stipulated that Antwerp should be an exclusively commercial port; and the stipulation was renewed by the Treaties of 1831-39, which erected Belgium into a separate kingdom.(r) By the same Treaty of 1831,(s) it was stipulated, negatively, that the fortresses of Menin, Ath, Mons, Philippeville, and Marienburg should (1) "Servitutum non ea natura est ut aliquid faciat quis (veluti viridaria tollat aut amoniorem prospectum præstet, aut in hoc ut in suo pingat :) sed ut aliquid patiatur, aut non faciat."-Dig. viii. t. i. s. 15. (m) Treaty of Utrecht (1713), between France and England, Art. 4. (o) Traité d'Utrecht (1713), Art. 9. Traité de la Haye (1717), Art. 4. (p) Koch, Hist. des Tr. vol. i. pp. 333-4. See, too, the Treaties of Radstadt and Baden between France and the Emperor of Germany, Arts. 5, 8, 9. (9) Art. 15. (r) Art. 14. (8) Art. 1. be demolished before the 1st of December, 1833; and affirmatively, that the other Belgian fortresses should be kept in repair by the King of the Belgians. At one time Holland insisted that the Ostend East India Company, founded in 1723, and abolished by the Treaty of Vienna in 1731, was under a servitus non navigandi.(t) The Treaty of Vienna (1814), which reinstated the Pope in the possession of the Marches, Camerino, Beneventum, Ponte-corvo, and the Legations of Ravenna, Bologna, and Ferrara, on the right bank of the Po, subjected His Holiness at the same time to the servitus of suffering Austrian garrisons "dans les places(u) de Ferrare et Commachio.") Mardo 30. 1856. Comontu teh Eng, ir and ludia, R. declared that live Aland Island Sh.nib, fustified, we that no Military or naval establishment sh. b. maintained of erected there" 333 *CHAPTER XVI. IV. EXTINCTION OF DOMINION. (a) [*307] CCLXXXH. As Dominion is acquired by the combination of the two elements of fact and intention, so, by the dissolution of these elements, or by the manifestations of a contrary fact and intention, it may be extinguished or lost.(b) In this case the dominion is lost, actually or by presumption, with the consent of the State which loses it. CCLXXXIV. The title of Prescription in another State is often, + though not necessarily, founded on the presumed dereliction of the possession by the original owner. It must be borne in mind that this presumption like all others, is liable to be repelled by proof of sufficient strength, (c) that is, by evidence of a state of facts wholly inconsistent with such presumption. On the other hand, it should be observed that there is a conduct, and that there are acts on the part of a State, which must be construed as an abandonment of her previous rights. For instance, a [*308] State may make herself a party to some convention upon another matter, but in which the possession or right originally belonging to her is (t) Klüber, s. 133. n. c. Ompteda, tit. ii. 600. (u) The real meaning of this term underwent much discussion during the recent disturbances in Italy. (a) Grotius, l. ii. c. ix.—Quando imperia vel dominia desinunt, 1. iii. c. ix. 9. Martens, t. ii. 1. ix. p. 340-4. Günther, vol. ii. p. 213. Heffters, 72. Muhlenbruck, 1. ii. c. iii. s. 270. (b) "Ferè quibuscunque modis obligamur, iisdem in contrarium actis liberamur; quum quibus modis acquirimus, iisdem in contrarium actis amittimus. Ut igitur nulla possessio acquiri, nisi animo et corpore potest, ita nulla amittitur, nisi in quâ utrumque in contrarium actum est."-Dig. L. 17, 153; xli. 2, 8. (c) "Quia verò tempus memoriam excedens quasi infinitum est moraliter, ideo ejus temporis silentium ad rei derelictæ conjecturam semper sufficere videbitur, nisi validissimæ sint in contrarium rationes."-Grotius, De J. B. 1. ii. c. iv. s. 7. indirectly, though of necessity, treated as belonging to the claimant by prescription; and such convention being concluded without any reservation on the part of the nation, would be very strong evidence of the abandonment of her right. Again, if a nation suffer other nations in their mutual arrangements to deal with the right of possession in question as belonging to one of them, and makes no protest in favour of her claims, she must be held to have acquiesced in the transaction. An individual may indicate his acquiescence by his words or by his deeds. "Recusari hæreditas non tantum verbis, sed etiam re protest, et alio quovis indicio voluntatis" (d) is the doctrine of the Roman Law; and upon it Grotius(e) remarks, "Sic si is qui rei alicujus est dominus, sciens cum altero eam rem possidente tanquam cum domino contrahat, jus suum remisisse merito habebitur: quod cur non et inter reges locum habeat, et populos liberos nihil causæ est." And again: «Venit enim hoc non ex jure civili sed ex jure naturali, quo quisque suum potest abdicare, et ex jure naturali præsumptione, quâ voluisse quis creditur quod sufficienter significavit : quo sensu recte accipi potest quod Ulpianus dixit, juris gentium esse acceptilationem."(f) Heineccius, in his Commentary on Grotius, expresses concisely the the same doctrine "inter gentes loco signi est patientia scientia."(g) It is indeed true that, according to Grotius, silence cannot be construed as an assent, unless it be "scientis et liberè *volentis;" but he [*309] adds that "temporis in utrumque magna vis est ;" and in fact these conditions are presumed after the lapse of time.(h) CCLXXXV The practice of nations confirms this theory: they have frequently entered protests(i) in favour of their alleged rights upon the conclusion of Treaties in which these rights were expressly, or by implication, negatived. It is hardly necessary to add, that a nation, who is herself a party to such a Treaty, without making any protest, has unquestionably abandoned her rights. The Congress of Aix-la-Chapelle (d) Dig. xxix. 2. s. 95. (e) L. ii. c. iv. s. 4. (g) Prælect. 1. ii. c. iv. s. 4. See, too, Mably, Droit Public, t. ii. p. 21, 22. (h) Grotius (De Jure Belli, p. 227.) says: "Sed ut ad derelictionem præsumendam valeat silentium duo requiruntur, ut silentium sit scientis, et ut sit libere volentis, nam non agere nescientis, caret effectu; et alia causa cum apparet, cessat conjectura voluntatis." "Ut hæc igitur duo adfuisse censeantur, valent et aliæ conjecturæ: sed temporis in utrumque magna vis est. Nam primum fieri vix potest, ut multo tempore res ad aliquem pertinens non aliqua via ad ejus notitiam perveniat, cum multas ejus occasiones subministret tempus. Inter præsentes tamen minus temporis spatium ad hanc conjecturam sufficit, quam inter absentes, etiam sepositâ lege civili. Sic et incussus semel metus durare quidem nonnihil creditur, sed non perpetuo, cum tempus longum multas occasiones adversus metum sibi consulendi, per se, vel per alios suppeditet, etiam exeundo fines ejus qui metuitur, saltem ut protestatio de jure fiat, aut, quod potius est, ad judices aut arbitros provocetur." “ Κάτοχον καὶ βέβαιον τὴν κτῆσιν πεποιηκότος τοῦ χρόνου.”Dionys. Halicarn. c. ix. t. ii. p. 155. แ according to the remarkable expression of Sophocles ('Hλixтpa, 179.). De Rayneval, Instit. du Droit de la Nature et des Gens, 1. ii. c. ix. s. 2. |