other ceremonial usages. To this rank belonged emperors, kings, grand dukes, the elector of Hesse, the Swiss republic, the United States of America, the German confederation.

2. Among states of the same class entire equality of rights obtains, but the rule of precedence, in regard to rank, is settled by treaty and usage. Kings and emperors have a general equality, as is indicated by the fact that the former frequently connect the latter title with that by which they are especially known. A precedence is given to kings and emperors before sovereigns who have inferior titles, and before republics, "whose special relation of rank to other states with royal honors is not definitely fixed." There was a certain order of the German states in relation to affairs of the confederation, and to this alone. Half-sovereign and protected states rank after those on which they depend. Treaties by which one state concedes the precedence to another over a third, without its consent, are of no obligation upon the latter, and may contain a violation of the respect which is its due.

The rank which a state has once obtained is usually not lost by a change of constitution.

fading out.

The tendency of things is, as far as possible, towards entire equality of states. Thus commercial privileges are These disfast disappearing, and new treaties to a great extent tinctions concede the advantages given to the most favored nations. The precedence of ambassadors of the same rank is determined simply by length of residence at the court. And special tokens of respect to one nation more than to another, like those claimed by England in certain narrow seas, have nearly gone out of use.

1 Heffter, § 28, p. 50.

CHAPTER II.

TERRITORIAL RIGHTS OF STATES AND RIGHTS OF PROPERTY.

STRICT RIGHT RENOUNCED, ESPECIALLY AS TO THE USE OF NAVIGABLE WATERS.

§ 53.

Property of

ternational

law,

what?

A NATION is an organized community within a certain territory; or in other words, there must be a place where its sole sovereignty is exercised. It may, also, and will states in in have property of its own, like individuals and associations; it may even hold such property within the borders of other states, may be the creditor of foreign states or individuals, or, unless the law of a state prohibit, may possess land there on the tenure of private ownership. Upon the property of its subjects, again, it has a certain lien, as appears from the power to lay taxes and the power to use privato property for public purposes. The right of eminent domain, however, with which such power over private property is connected, does not imply that such property is absolutely under the control of the state, or that the state was the prior owner, and conveyed it to the individual under conditions; but it is rather to be considered as one of necessity, without which, at times, public affairs could not move on, nor the rights of many individuals be protected. Now, although the relations of the state to its territory, to its property, and to the property of individuals are different, yet as far as other nations are concerned, they may all be included under the term property. "Such property of states," as Heffter well remarks, "has only in relation to other states the same character which property has, namely, the character of exclusiveness and free disposal," that

is, of pertaining to the state to the exclusion of all other states, and of being disposed of without restraint on their part upon its will.

A state's territorial right gives no power to the ruler to alienate a part of the territory in the way of barter or sale, as was done in feudal times. In other words, the right is a public or political and not a personal one. Nor in justice can the state itself alienate a portion of its territory, without the consent of the inhabitants residing upon the same, and if in treaties of cession this is done after conquest, it is only the acknowledgment of an unavoidable fact. (Comp. § 161, and Grotius, ii., 6, § 4.)

Property of a foreign state or sovereign within the bounds of a state involves no restriction of territorial sovereignty. Territorial servitudes, as right of free harbor, of transit, etc., may exist, but arc stricti juris, the presumption being always in favor of sovereignty. (Comp. Bluntschli, “Staatsr.,” i., 189.)

§ 54.

There is a tendency, in quite recent times, to act, in international arrangements, upon the principle here stated, that the consent of the inhabitants of a ceded terri

Consent of

inhabitants

of ceded ter

ritory some

times asked.

tory ought to be obtained. In the treaty of Prague of 1866 (see Append., ii., sub anno), it is provided that the rights of Austria to Schleswig-Holstein are ceded to Prussia, "with the reservation that the inhabitants in northern Schleswig shall be united anew to Denmark, if they express the desire for it in a free vote." Here, however, the Danish nationality of that part of the duchy was, without doubt, of weight, and of the more weight, as the Germans had insisted on the German nationality of both duchies in their contest with Denmark. In 1860 the Neapolitan provinces-Sicily, the Marches, and Umbria - were annexed to the kingdom of Italy in the same way by direct and universal suffrage. The decree of December 17, which declares the Neapolitan provinces to form thenceforth an integral part of the kingdom, is based on the submission of a plebiscitum to the people, on the proof that

it was presented to them and accepted, and on a law authorizing the government "to accept, and by royal decrees establish, the annexation to the state of those provinces of central and southern Italy in which there shall be manifested freely, by direct, universal suffrage, the will to become an integral part of the constitutional monarchy" of Italy. In this way, doubtless, it was intended to turn a half-right into a whole one, or to sanctify unjust conquest by popular consent. The principle would be a good and beneficial one as between two states that such consent should be necessary before a transfer of allegiance. But, to make a desire on the part of the inhabitants of a district a ground for interfering on their behalf to disconnect them from one state, and to connect them with another, would go beyond any interference now known to international law in its disintegrating tendency, and would give rise to any amount of intrigue and unjust influence.

In the Treaty of Turin, uniting Savoy and Nice to France, the first article provides that "this union shall be effectuated without constraining the will of the inhabitants, and that the governments of the Emperor of the French and of the King of Sardinia will agree as soon as possible as to the best means of estimating and certifying the demonstrations of this will." (Martens, N. Rec. Gen., xvi., 2, 539. Comp. App. ii., under 1859.)

There is another point involved in this section which deserves a brief notice. In this age, when the ties of race, of common language, and religion-of all, in short, which makes up nationality-have so much of importance attached to them, there is growing up a feeling that, where two nationalities are united in one state or nation, another state, belonging to one of these nationalities, has a sort of right to bring its brethren into its pale, if they desire it. That nations should take advantage of war to alter their lines of territory is natural and common enough, and treaty brings such changes into a jural shape. But the other principle has for it no natural justice; it generally implies conduct opposed to ancient treaties, and is against the peace of the world. Here it may be asked whether there is

any right of prescription in public law answering to the admitted right of private law? This right, as commonly understood, may be defended on the practical ground of the evil attendant on the disturbance of old titles, or on that of the usual insufficiency of evidence after long possession by another party, or on the ground of political economy, that the labor spent on the soil constitutes (after fifty years, for instance) its principal value, or on the ground that the land, having been abandoned and being res nullius, became another's by occupation (comp. Gaius, ii. 67); but none of these reasons can be applied to political relations, unless it be the first. But the title to territory rests on stronger ground for the most part-on the consent formally expressed of all the other parties to international law, or, at least, on the tacit recognition, for a lapse of years, of the right of a state-i. e., of an organized community within certain limits. -to exist as such. To rake up old claims based on a forgotten state of things, after treaty or long use had buried them, is profligate. Louis XIV. may have committed a great crime in seizing Strasbourg, but, after his possession was sanctioned by the German empire, at the peace of Ryswick, no claim from the past is any longer admissible. Prussia may have acted very scandalously in the conquest of Silesia, or in the matter of Schleswig-Holstein; but, after treaty has settled all disputes, it is unjust to revive the old state of things—that is, for the old reason; although new wars on new ground may involve a revival of conditions long obsolete.

§ 55.

The territory of a nation, or that portion of the earth over which it exercises the rights of sovereignty, may have begun to pertain to it in a variety of ways. It may acquiring have derived its title

Modes of

territory.

1. From occupation of land which was before vacant, and from prescription, public and uninterrupted.

2. From occupation by colonies, or other incorporation of land before occupied.

3. From conquest accepted as a fact and at length ending in prescriptive right.