Philip, Duke of Anjou, great-grandson of Louis XIV., was, from the point of view of international law, a simple individual. After the death of Charles II., by the treaty of Utrecht the states belonging to the Crown of Spain were dismembered, and Philip V. was recognised as the King of Spain, and acquired part of the states of the Spanish monarchy. Other examples might be cited.
When a prince was elected King of Germany he became a sovereign from a private individual that he was.
Or, again, when a chief of an African tribe, forming a sovereign state, cedes to an individual in full sovereignty a part of his state, does he do other than to call another person to the exercise of rights of sovereignty over one part of his state, erected into a new state? What difference is there between the case of a European prince who is called as sovereign to a state, or part of a state, and that where an African chief calls upon an individual to exercise sovereign powers over part of his state? In the fact undoubtedly there is much difference, but in law there is none; and that is the question. It is a question of law (droit) we have to study here.
It is even possible that an individual may remain a subject of the state to which he belongs, and may be the sovereign of another country. The sovereign, therefore, can have a double personality. Thus, Ernest Augustus, and George V., Dukes of Cumberland, were subjects of Queen Victoria and peers of England and at the same time Kings of Hanover. In 1787 the sovereign bishop of the principality of Osnabruck, the Duke of York, sat as a peer of England in the House of Lords.[81]
The question which has been laid down at the head of this opinion is a novel one. It has not been foreseen or treated in works of international law. Many authors treat a question which touches upon this one, but which differs from it a good deal. They ask if an individual can make in his own name an act of occupation of a territory newly discovered without a master. They reply negatively to this question, and, in their line of ideas, they are right; for those who discover new territories are almost always navigators, travelling in a public ship, often public officers or individuals commissioned by their governments—agents of the government—and they cannot occupy in their own name.
A recent event furnishes a powerful support to the theory that rights of sovereignty can be ceded to individuals, namely, the treaty between the Sultans of Borneo and Sulu and Mr. Dent and Baron Overbeck, who, in their turn, have ceded their rights to a private British company, the “British North Borneo Company.” This fact has importance in itself, as a new event which enlarges juridical science; but what especially gives strong support to our thesis is the manner in which this event has been appreciated, be it inferentially or explicitly, by several governments, by jurisconsults, and by eminent statesmen whose opinions can be invoked as having authority.
The opinions of jurisconsults and publicists are ranged among the sources of international law.[82]
In the first place, the Governments of Holland and of Spain, who believed themselves most directly affected by the concessions, accorded by the two Sultans of Borneo, did not deny the principle of the capacity of individuals or of associations to have ceded to them rights of sovereignty, but they raised reclamations against these treaties by invoking rights previously acquired.
Let us reproduce here the passage written by M. de Laveleye upon the discussion to which the giving of a charter of incorporation to the British North Borneo Company gave rise in the English Parliament[83]:
“Certain members of the left, adversaries of what is called in England the imperial policy, that is to say of the policy which seeks extension of territory and of influence, criticised the measure because it created a new responsibility for the country; but no one contested the right of individuals or of the company—rights resulting from treaties concluded with indigenous chiefs. In the reply made in the House of Commons by the attorney-general, Sir Henry James, we read: