"the existence of which caused or contributed to cause the "war which resulted in annexation;" and these instances do not exhaust the list of necessary exceptions.

And apart from this objection, it is certain that no State will consent to assume liability for every tort of its predecessor, or hold itself bound by every contract to which the former State was a party. The theory of universal succession is indeed based on a fallacy: it assumes the occurrence of a succession: but in fact there is no succession in the sense in which that term is used. The conquering State is a distinct and different personality: it does not stand in the shoes of the State it has conquered, but brings its own shoes with it. It would be unreasonable to contend that contracts of a kind personal to the extinct State, or contracts by their very nature dependent on the continued existence of that State, were binding on the new State. It could not be contended, for instance, that Great Britain was bound by a contract entered into by the South African Republic for the erection of a statue of ex-President Kruger, or a column to perpetuate the victory of Majuba Hill, and it would be absurd to insist that compensation should be paid if the continuance of such contracts was not recognised. The reason why such contracts cannot bind the conqueror is, that he is not identified with the conquered, but is a distinct personality, and not a "successor" in the sense in which that term is used in private law.

Difficulties such as these appear to have convinced Huber that there cannot be a "successio in universum jus" as between States, but he suggests that there is a succession of a special kind, in which the successor steps into the rights and liabilities of his predecessor as if they were his own. The meaning of this qualification may be best explained by observing it in its application to the particular case of concessions. In Huber's view a successor is prima facie

bound by all the concessions granted by his predecessor, but, inasmuch as he is a distinct personality, he cannot be required to continue any concessions which conflict with the public law and policy of his own State: for that must now prevail in the conquered territories. He therefore has a right to terminate concessions which come within this category, but he may only do so on payment of compensation. The importance of this distinction is not easy to appreciate. Every Government is justified in putting an end to every concession, or in appropriating any other property on payment of compensation. It is a right exercised in this and every other country, and applies equally to the property of nationals or foreigners. The construction of a railway, the taking over of a private undertaking by the State or a municipality, under compulsory powers, involve the termination of private rights, but the power under which this is done is inherent in Sovereignty, and does not specially come into being on a succession, nor apply only to one particular class of concessions. The practical result of this theory appears to be that the successor is bound by all the concessions of his predecessor.

The attention which Huber has devoted to the subject, even if there were no other reasons, would entitle his conclusions to the greatest weight, and it may be that they will be ultimately accepted as a correct exposition of the Law of Nations: at present they cannot be regarded as more than an attempt, however valuable, to formulate the matter on a scientific basis.

In the absence of any accepted principle of law some guidance may, it is thought, be obtained from a consideration of the actual position created by conquest, and of the effect of conquest on treaties to which the conquered State was a signatory. The parties affected by the change of Sovereignty, in cases where the conquered State has ceased to exist, are (1) the conqueror, and (2) neutral States who

had claims either directly or on behalf of their subjects. against the extinct State. The position is, that the conqueror has obtained possession of the conquered territory, but to consummate his conquest he desires to have his title recognised by other Powers. The neutral States are willing to accord that recognition, but only on the terms that the conqueror accepts some portion at least of the liability of the defunct debtor. In the opinion of Rivier this is the position in law as well as in fact.

"Les principes de la succession des Etats ne sont donc, "à proprement parler, pas obligatoires pour le conquérant, puisqu'il ne tient que de lui-même sa souverainté sur le

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pays conquis. Cependant les puissances tierces ont des "droits acquis, qu'elles pretendront conserver et voudront "faire respecter, et l'intérêt même du conquérant doit l'engager, surtout s'il désire en obtenir la reconnaissance "de sa conquête, à se faire considérer par elles comme le " véritable successeur de l'État qu'il a dépossédé." The question in this view resolves itself into one of "give and take,” and the difficulty is to find some reasonable basis for settlement between the two parties.

Now the claims of neutral States quâ States in general arise out of treaties, and the extent to which a conqueror is bound by treaties has been determined with some particularity by usage. It may be taken to be a rule of International law, that the successor is bound only by those treaty rights which can be said to inhere in the soil, like the easements on servitudes of private law, and is free from all obligations which were merely personal to the late Sovereign, though they might have had to be performed on the territory. Treaties of alliance, commerce, navigation or extradition, come to an end on the extinction of a signatory State, but treaties affecting the territory itself, e. g., for cession, mortgage, creation of servitudes, or delimitation of bound

1 Principe du Droit des Gens. Rivier, II, 438.

aries remain in force. The underlying principle seems to be that the successor who takes the territory of the extinct State takes it subject to the rights of other Powers, so far as those rights affect the territory, but that he is not bound by other obligations.

This appears to have an important bearing on the question under discussion, for the claims of neutral subjects cannot on any principle be in a better position than those of neutral States. Their contracts or concessions must be governed by the same considerations which apply to treaties and it is not easy to see any ground on which a conqueror can be asked to undertake a greater obligation. in respect of the former than he is compelled, according to International law, to do in respect of the latter. We seem, therefore, at this point, to have got into touch with a principle which may possibly afford a basis for settlement, and which has, at any rate, been already adopted into the Law of Nations in the analogous case of treaties. The extension of this principle to other obligations finds support in the present practice as to concessions. It is believed that railway, mining, and cable concessions which of themselves confer an interest in the soil, have invariably been treated as binding in recent years.

Of itself this principle has a good deal to commend it: "Qui sentit commodum sentire debet et onus" is a wellknown maxim of English law, and embodies a proposition which is equally reasonable whether applied to public or to private law. The conqueror who takes the benefit of the assets of the conquered, may fairly be called on to discharge the burdens which have become attached to those assets. He cannot claim to have acquired by conquest a greater interest in them than the conquered had at the time of conquest.

The distinction between claims attached to the assets and those not so attached is perhaps at first sight somewhat

vague: what is suggested is, that mere claims against the extinct State, which might be satisfied at some future time if the surplus revenues were sufficient, are not attached to the assets: rights granted in the territory or debts expressly charged on the assets are so attached. Public debt, if not expressly so charged, would be treated as impliedly charged and responsibility for it assumed by the conqueror, subject, it is submitted, to the exception that in cases where the security for the debt was increased by the conquest, the creditors might properly be asked to abate their claims in proportion to the enhanced value of their security. This would be in accordance with the general usage by which a successor does accept liability for public debt.

If a settlement were made on these lines, there would be at once excluded all claims for torts, and all claims arising out of contracts (as distinct from concessions), whether executors or executed, except in the cases in which an actual right in the territory or an express charge on the assets had been created, and except in the cases in which the conqueror had reaped the benefit of the contracts and had to that extent adopted them. In other cases of contract he might fairly claim to repudiate liability. Indeed, he might with some reason contend that his predecessor had expended in belligerent operations directed against himself the moneys which should have been devoted to discharging these current liabilities. "Concession" is a term of some ambiguity, but in general imports a contractual right of a semi-public character. Applying the suggested test to such concessions, the result would be that railway, mining, and cable concessions and the like, and concessions for public works, would continue unaffected, because they are in the nature of rights in the territory, and because the succeeding State obtains the benefit of the expenditure incurred in respect of them. This, as has been said, is in accordance with present usage.