A Study of the Theory and Practice of

Plebiscites

HISTORICAL SUMMARY

Discussion of the doctrine of national self-determination falls naturally into three periods. At least this is true when the discussion, as in this volume, deals exclusively with national self-determination as a factor in changes of sovereignty through separation, cession and annexation.

The history of the doctrine properly begins with the French Revolution. Born of the political principles and practical problems of the Revolution, the doctrine was adopted as the guiding principle in foreign relations, was applied in good faith in the annexations of Avignon, Savoy, Nice, and used as a political subterfuge in the later annexations of the Belgian Communes and the Rhine Valley, only to be utterly destroyed by the growing ambition for conquest over a world of enemies.

The next and most prosperous period of its history is from 1848 to 1870. Revived by the national aspirations for self-government in 1848; resorted to by the Italian patriots; adopted as their own by Prussia and the Germanic Confederation as the solution for the Schleswig question; adopted by the Congress of Paris of 1856, it grew rapidly in prestige and by 1859 had enlisted the almost undeviating adherence of three of the four leading statesmen of the time - Cavour, Russell and Napoleon - and the temporary support of Bismarck. Recognized as the creative force of the new Italian kingdom; made the basis of the union of Tuscany, Emilia, Sicily, Naples, the Marches, and Umbria; repeated in the subsequent union of Venetia and Rome; stipulated in the treaty of Turin for the cession of Savoy; endorsed, though unsuccessfully, by the chief Powers at the Conference of London as the only solution for the Schleswig question; followed by Great Britain in her cession of the Ionian Islands to Greece; inserted in the treaty of Prague between Austria and Prussia by 1866 the method of appeal to a vote of the inhabitants, either by plebiscite or by representative assemblies, especially elected, bade fair to establish itself as a custom amounting to law. Another philosophy was rising, however. The Prussian annexation of Schleswig in 1867, without regard to the provisions of the treaty of Prague and the annexation of Alsace-Lorraine in 1871 dealt the principle a blow which, the world being under German tutelage in matters of historical criticism and the

philosophy of the State, was practically fatal. After 1870 it was given a nebulous continuance by the treaty of 1877 between France and Sweden for the cession of St. Bartholomew, and by the treaty of Ancon between Chile and Peru. The ascendancy of the doctrine of political opportunism, however, found accurate expression in the Congress of Berlin. A second Congress of Vienna, it was to have the same result, for the doctrine of national selfdetermination, abandoned by diplomats, was to have henceforth a place in the platform of every liberal or radical movement and with the outbreak of the war in 1914 was to become the symbol of regeneration for every subject nationality.

The doctrine of national self-determination is based on and inseparable from that of popular sovereignty. Before the French Revolution sovereignty looked to the land, not to the inhabitants. Change of sovereignty through inheritance or marriage of the reigning prince, through barter or through conquest was the recognized and legitimate order. Title so acquired was admittedly valid without appeal to the will of the inhabitants.

To the philosophers of the French Revolution the right of conquest, reasonable adjunct as it was of the divine right of kings, was incompatible with the right of peoples to choose their own rulers. To assert that a conqueror could retain his domination over the inhabitants of a conquered territory against their will was to deny the doctrine of popular sovereignty and to change free men back to slaves. In order to harmonize external relations with the basic principles of the new order the doctrine of no annexation without consultation of the inhabitants was formulated, a doctrine new in the experience of Europe. Yet as no new doctrine of political philosophy springs full grown upon a startled world, but always, after the event, seeds of it may be found in the words of men of thought and may be discerned in events long antedating its period of maturity, so it is true in this instance that writers had indicated the principle, subjects had appealed to it, and a few astute rulers had made use of it before the final adoption as a national policy by leaders of the French Revolution.

Historians in discussing the origins of the doctrine refer to the case of the provinces ceded by Louis IX to Henry III of England in the thirteenth century, against which cession the nobles of the provinces in question protested as contrary to their rights,' and also to the refusal of the people of Guienne to be separated from the kingdom of England, notwithstanding the grant and donation of Richard the Second.2 However significant these instances may be, there is far greater importance in the attack on title by conquest and the ridi

1 L. E. A. D. H. de la Guéronnière, Le droit public et l'Europe moderne, vol. 1, p. 434. 2 Samuel von Pufendorf, De jure naturae et gentium, lib. 3, pp. 809, 831, citing Froissard, 1.4. Polyd. Virgil. Hist. Angl. 1.20.

2

cule of historical arguments as claims to sovereignty over alien peoples, published by Erasmus in the Adagiorum Chiliades, is 1517.1 Erasmus stated in precise language that authority over men and beasts is not of the same order, that all power and authority over people rests on their consent, and that title by conquest is a fallacy. In view of the great influence of Erasmus on contemporary thought, and the immense popularity of his writings, it is not surprising that the only two cases of deliberate appeal to the doctrine by rulers themselves which occur before the eighteenth century should follow shortly on his words. The first of these occurred in 1527, when Francis I of France, perceiving the political value of the principle, used it as a weapon of diplomacy by appealing to the estates of Burgundy in order to invalidate the cession of the duchy which he had just made to Charles V by the treaty of Madrid.3 The second resort to the principle was made by his successor, Henry II, who appears to have desired its sanction for annexing Toul, Metz and Verdun, and caused a vote of the people to be taken before annexation. Whether or not this vote was by universal suffrage, it would seem to be the only one at all approaching the character of a plebiscite occurring before the Revolution.* The next century saw the beginning of the formulation of principles of in

1 For an excellent English translation, cf. J. W. Mackail (ed.), Erasmus, Against War, p. 50.

2 The essay containing the passage cited was printed separately in April, 1517. Half the scholarly presses of Europe were soon employed in reprinting it. Within ten years it had been reissued at Louvain, twice at Strasburg, twice at Mayence, at Leipsic, twice at Paris, twice at Cologne, at Antwerp and at Venice. German translations of it were published at Basel and at Strasburg in 1519 and 1520, and an English translation appeared in London in 1533. Mackail, p. xxiv.

3 The account given by François Guizot, in l'Histoire de France, vol. 3, p. 96, is to the effect that Francis had no intention of carrying out the treaty which, he protested before signing, was void because wrung from him by force. Before executing the treaty he summoned the estates of Burgundy at Cognac. They formally repudiated the cession as contrary, they said, to the laws of the kingdom and the rights of the king who could not alienate, on his own authority alone, any portion of his estate. Francis then called the envoys of Charles V to a solemn meeting of his council and court at Cognac, where the deputies from Burgundy repeated their protest, which Charles asserted was an insurmountable obstacle to the execution of the treaty. Cited also by Emmerich de Vattel, Le droit des gens, lib. 1, p. 263, and by de la Guéronnière, vol. 1, p. 432.

Louis Michon in Les traités internationaux devant les Chambres, p. 24, says that the clause in the treaty of Madrid reserving the approbation of the estates referred only to the estates of Burgundy and implied the consent of the representatives of the ceded district. If this were so, this treaty would be the first to contain such a clause. On examination of the treaty it appears, however, that the clause plainly refers to the States General of the kingdom and was meant as a legislative sanction only.

* The story runs that the bishop of Verdun said to his people "que le roi de France était venu comme libérateur, qu'il voulait traiter les bourgeois comme de bons Français et que, bien éloigné d'user de mesures de rigueur, il en appelait au vote libre du peuple." Emile Ollivier, L'Empire libéral, vol. I, p. 165. Ollivier cites Janssen, Frankreichs Rheingelüste, p. 28. as his authority.

ternational law. Grotius, writing in 1625, said, "In the alienation of a part of the sovereignty, it is also required that the part which is alienated consent to the act," 1 and Pufendorf wrote in 1672, " But in the alienation of a part of the kingdom, besides the king's consent, there is required not only the consent of the people which continues under the old king, but the consent of that part too, especially, whose alienation is at stake." 2 This view was echoed by Vattel in the eighteenth century. The numerous transfers of territory made in the seventeenth and eighteenth centuries, however, were made without further concession to these teachings than that of a grant of the right of option. By this right the individual inhabitants of the ceded territory were allowed a definite period of time to choose between the two allegiances and to remove themselves and their property, should they choose to remain under the ceding State.1

This was the only alleviation of the ancient rule that the sovereignty of the conqueror extended to all inhabitants of a conquered country without regard to individual desires. Even the several partitions of Poland appear to have caused no comment on the score of disregard of the popular will. Conquests by kings for their own aggrandisement, for economic markets, for strategic values, proceeded with scarcely a challenge save as they disregarded treaty rights.

The American Revolution had effected a lasting change in the relation of the citizen to the State. The French Revolution brought about far-reaching changes not only in the internal but also in the external relations of the State. The Revolution was almost immediately confronted with questions of the relations of States as to territorial matters. It was evident that the old principles of territorial cession which confounded the State with the prince were wholly unsuited to the new doctrine of popular sovereignty which, when established within the State, implied as a corollary that no change of sovereignty was legal without the consent of the people concerned. To the leaders of the Revolution, devoted to abstract principles as guides for action, this

1 "In partis alienatione aliud insuper requiritur, ut etiam pars de qua alienanda agitur consentiat." Hugo Grotius, De jure belli ac pacis, lib. 2, cap. 6, sec. 5. The translation is by Whewell.

2" Sed in alienatione partis praeter consensum regis requiritur non solum populi, qui sub pristino rege remanet, sed vel maxime consensus illius partis, de qua alienanda agitur." Pufendorf, bk. 8, ch. 5, § 9. The translation is by Basil Kennett.

3 Vattel, lib. 1, chap. 21, §§ 263-64.

The first example of a clause of option in a treaty of cession given by Calvo is that in the treaty of Ryswick (1697), Article 17 of which reads "Qu'il soit permis à tous ceux des habitants de la ville de Strasbourg ou des dépendences, de quelque condition qu'ils soient, qui voudront émigrer, de transférer leur domicile au lieu où il leur plaira et d'y transporter leurs meubles, en franchise de tous droits, dans le délai d'une année à partir de la ratification du traité de paix." A similar clause appears in the Treaty of Utrecht (1713). Carlos Calvo, Le droit international théorique et pratique (5th ed.), § 641.