Mr. Greenhow may be perfectly justified in disputing the propriety of Lt. Broughton’s distinction. The words of the latter are,—“Between the ocean and that which should properly be considered the entrance of the river, is a space from three to seven miles wide, intricate to navigate on account of the shoals that extend nearly from side to side, and it ought rather to be considered asa soundthan as constituting a part of the river, since the entrance into the river, which they reached about dark, was found not to be more than half a mile wide, formed by the contracting shores of the sound.” It may fairly be admitted that the ordinary use of the terms “sound,” or “inlet,” warrants the verbal criticism of Mr. Greenhow, and that they are more usually employed to distinguish arms of the sea where there is no fresh water, or tideways outside the bars of rivers. Lieutenant Broughton, if we may judge from the context would have been more correct had he used the term “estuary” instead of “sound,” for, “in common understanding,” as Lord Stowell has observed, “the embouchure or mouth of a river is that spot where the river enters the open space to which the sea flows, and where the points of the coast project no further.” (Twee Gebroeden, 3 Robinson’s Reports, p. 34.) At the same time, after a careful perusal of Vancouver’s journal, a protest must be entered against any reader of that work, particularly against one who occupies the position which Mr. Greenhow fills, attributing such motives to the British navigator, or insinuating such a probability as that Gray’s discovery would have been suppressed by Vancouver, had not Gray fortunately secured Quadra as an unimpeachable witness to it. Mr. Greenhow’s jealousy for the fame of his countryman may be excusable up to a certain point, but when he states that Vancouver “did not hesitate to adopt unworthy means to deprive the Americans of the reputation which they had justly earned by their labours in exploring, and to blacken their characters as individuals,” he has allowed an unreasonable sensitiveness to hurry him into the commission of the very fault which he censures in others, and has laid himself opento the identical charge, mutatis mutandis, which he has set up against Vancouver.
Had there been anysubstantialmisrepresentation on the part of Vancouver in respect to what Gray actually did discover, “a want of good faith” might have been reasonably imputed to him. Happily, however, for Vancouver’s memory, the extract from the log-book of the Columbia bears out all the facts which Lieutenant Broughton alleges as to the extent of Gray’s researches. “From this point,” the latter says, alluding to a remarkable projecting point on the southern side, appearing like an island, a little above Point George, to which the name of Tongue Point was given, “was seen the centre of a deep bay, lying at the distance of seven miles N. 26 E. This bay terminated the researches of Mr. Gray; and to commemorate his discovery, it was called after him, Gray’s Bay.” “In Mr. Gray’s sketch,” Broughton further informs us, “an anchor was placed in this bay,” so that he does not attempt in any way to misrepresent the locality of the spot where Gray’s researches terminated. Lieutenant Broughton certainly denies the correctness of the sketch in respect to the distance of this bay from the entrance of the river. “It was not more,” he writes, “than fifteen miles from Cape Disappointment, though according to the sketch it measures thirty-six miles.” But the log-book itself confirms approximatively Lieutenant Broughton’s statement, for it makes the distance of the spot where Gray brought up his vessel to be about twenty-two or twenty-five miles from the entrance between the bars, and Cape Disappointment is six miles distant from the entrance, so that there must have been an error in the sketch, if we admit the accuracy of the log-book.
The result of this inquiry seems fully to warrant the position which the British commissioners insisted on in 1826-7, that the discovery of the Columbia river wasa progressive discovery. Heceta made the first step in 1775, when he discovered the bay, and concluded that “the place was the mouth of some great river, or of some passage to another sea;” but Heceta’s report was not made public by the Spanish authorities. Meares, in 1788, confirmed Heceta’s discovery of the bay, but impugned the correctness of the Spanish charts, as to there being a river there with a good port; his Voyages were published in London in 1790. Vancouver, having seen Meares’ account before he left England, examined the bay in April 1792, and at that time came to the conclusion that, thoughthere was river-coloured water in the bay, yet the opening was not worthy of attention, as being inaccessible to vessels of the same burden as the Discovery: his account was published in 1798. Gray, in the May following, after having on a former occasion beat about in the bay for nine days ineffectually, succeeded on his second visit in passing the bar, and explored the estuary for more than twenty miles: the extract of his log-book, which relates the particulars, was not made public before 1816. Lieutenant Broughton in the same year may be considered to have completed the discovery of the river, by ascending it for more than eighty miles above the limits of Gray’s researches, almost to the foot of the Cascades, where the tide ceases to be felt: the particulars of this expedition were published in the 2nd vol. of Vancouver’s Voyage, in 1798.
The plenipotentiary of the United States, Mr. Gallatin, on the other hand, repudiated the notion of Gray’s enterprise being considered as only a step in the progress of discovery, and maintained that the discovery of the river belonged exclusively to the United States; that Quadra (or he should have said, Heceta) had overlooked it; that Meares had likewise failed, and Vancouver had been not more fortunate; and that Broughton’s merit consisted merely in performing with fidelity the mechanical duty of taking the soundings 100 miles up its course. Upon the fact of this asserted first discovery in 1792, followed by the settlement of Astoria in 1812, Mr. Rush, announced, for the first time, in 1824, “that the United States claimed in their own right, and in their absolute and exclusive sovereignty and dominion, the whole of the country west of the Rocky Mountains from the 42d to at least as far up as the 51st degree of north latitude.” “It had been ascertained that the Columbia extended by the River Multnomah to as low as 42 degrees north, and by Clarke’s river to a point as high up as 51 degrees, if not beyond that point; and to this entire range of country, contiguous to the original dominions, and made a part of it by the almost intermingling waters of each, the United States,” he said, “considered their title as established, by all the principles that had ever been applied on this subject by the powers of Europe to settlements in the American hemisphere. I asserted,” he continued, “that a nation discovering a country, by entering the mouth of its principal river at the sea coast, must necessarily be allowed to claim and hold as great an extent of the interiorcountry as was described by the course of such principal river, and its tributary streams.”
Great Britain formally entered her dissent to such a claim, denying that such a principle or usage had been ever recognised amongst the nations of Europe, or that the expedition of Captain Gray, being one of a purely mercantile character, was entitled to carry with it such important national consequences, (British and Foreign State Papers, 1825-6.)
In the subsequent discussions of 1826-7, Great Britain considered it equally due to herself and to other powers to renew her protest against the doctrine of the United States, whilst on the other hand the United States continued to maintain, that Gray’s discovery of the Columbia river gave, by the acknowledged law and usage of nations, a right to the whole country drained by that river and its tributary streams.
Haying now passed in review the main facts connected with the discovery and occupation of the Oregon territory, we may proceed to consider the general principles of international law which regulate territorial title.
ON THE ACQUISITION OF TERRITORY BY OCCUPATION.
Connexion of the Sovereignty of a Nation with the Domain.—Vattel. The Sovereignty and Eminent Domain (Dominium eminens) attend on Settlement by a Nation.—Settlement by an Individual limited to the Acquisition of the Useful Domain (Dominium utile.) A Nation may occupy a Country by its Agents, as by settling a Colony. Kluber’s Droits des Gens.—The Occupation must be the Act of the State.—Occupation constitutes a perfect Title.—Bracton de Legibus.—Wolff’s Jus Gentium.—Acts accessorial to Occupation, such as Discovery, Settlement, &c., create only an imperfect Title.
Connexion of the Sovereignty of a Nation with the Domain.—Vattel. The Sovereignty and Eminent Domain (Dominium eminens) attend on Settlement by a Nation.—Settlement by an Individual limited to the Acquisition of the Useful Domain (Dominium utile.) A Nation may occupy a Country by its Agents, as by settling a Colony. Kluber’s Droits des Gens.—The Occupation must be the Act of the State.—Occupation constitutes a perfect Title.—Bracton de Legibus.—Wolff’s Jus Gentium.—Acts accessorial to Occupation, such as Discovery, Settlement, &c., create only an imperfect Title.
“When a nation takes possession of a country to which no prior owner can lay claim, it is considered as acquiring theempireor sovereignty over it, at the same time with thedomain. For, since the nation is free and independent, it can have no intention, in settling in a country, to leave to others the rights of command, or any of those rights that constitute sovereignty. The whole space over which a nation extends its government, becomes the seat of its jurisdiction, and is called itsterritory.” (Vattel, b. i., § 205.)
The acquisition of sovereignty, therefore, attends as a necessary consequence upon the establishment of a nation in a country. But a nation may establish itself in a country, either by immigration in a body, or by sending forth a colony; and when a nation takes possession of a vacant country, and settles a colony there, “that country, though separated from the principal establishment or mother country, naturally becomes a part of the state, equally with its ancient possessions.” (Vattel, b. i., § 210.)
The right ofdomainin a nation corresponds to the right ofpropertyin an individual. But every nation that governs itself by its own authority and laws, without dependence on any foreign power, is a sovereign state; and when it acts as a nation, it acts in a sovereign capacity. When a nation therefore occupies a vacant country, it imports its sovereignty with it, and its sovereignty entitles it not merely to adisposing power over all the property within it, which is termed its Eminent Domain, but likewise to an exclusive right of command in all places of the country which it has taken possession of. In this respect, then, a nation differs from an individual, that, although an independent individual may settle in a country which he finds without an owner, and there possess an independent domain (the dominium utile, as distinguished from the dominium eminens,) yet he cannot arrogate to himself an exclusive right to the country, or to the empire over it. His occupation of it would be, as against other nations, rash and ridiculous (Vattel, b. ii., § 96;) and it would be termed, in the language of the Jus Gentium, a “temeraria occupatio, quæ nullum juris effectum parere potest,” (Wolffii Jus Gentium, § 308.)
A nation, however, may delegate its sovereign authority to one or more of its members for the occupation of a vacant country, equally as for other purposes, where it cannot act in a body; in such cases the practice of nations allows it to be represented by an agent. Thus the right of settling a colony is a right of occupation by an agent. The colonists represent the nation which has sent them forth, and occupy their new country in the name of the mother country. But the colonists must be sent forthby the public authority of the nation, otherwise they will possess no national character, but will be considered to be a body ofemigrants, who have abandoned their country.
Thus, Kluber, in his “Droit des Gens Modernes de l’Europe:”—“Un état peut acquérir des choses qui n’appartiennent à personne (res nullius) par l’occupation (originaire;) les biens d’autrui au moyen de conventions (occupation dérivative.).... Pour quel’occupationsoit légitime, la chose dolt être susceptible d’une propriété exclusive; elle ne doit appartenir à personne;l’état doit avoir l’intention d’en acquérir la propriété, et en prendre possession(the State ought to have an intention to acquire the right of property in it, and to take possession of it;) c’est à dire, la mettre entièrement à sa disposition et dans son pouvoir physique.”
Occupation, then, in this sense of the word, denotes the taking possession of a territory previously vacant, which has either always been unoccupied, or, if ever occupied, has been since abandoned. It constitutes a perfect title, and its foundation may be referred to an axiom of natural law: “Quod enim ante nullius est, id ratione naturali occupanti conceditur.”(Dig. l. 3, D. de Acq. Rer. Dom.) This principle, engrafted into the Roman law, was as fully recognised by Bracton and by Fleta:—“Jure autem gentium sive naturali dominia rerum acquiruntur multis modis. Imprimis, per occupationem eorum, quæ non sunt in bonis alicujus, et quæ nunc sunt ipsius regis de jure civili, et non communia ut olim.” (Bracton de Leg., l. ii., c. 1.)
Amongst professed writers upon international law, Wolff, who is justly considered as the founder of the science, and who, in his voluminous writings, furnished the stores out of which Vattel compiled his “Law of Nations,” has set forth so clearly this principle, as that upon which title by occupation is based, that his words may be quoted from Luzac’s French translation of his “Institutions du Droit de la Nature et des Gens:”—
“On appelleoccupation, un fait par lequel quelqu’un déclare qu’une chose qui n’est à personne doit être à lui, et la réduit en tel état qu’elle peut être sa chose. Il paraît de là, que le droit d’occuper une chose, ou de s’en emparer, appartient naturellement à chacun indifféremment, ou bien que c’est un droit commun de tous les hommes, et comme on appelle manière primitive d’acquérir, celle par laquelle on acquiert le domaine d’une chose qui n’est à personne, il s’ensuit quel’occupation est la manière primitive d’acquérir.” (Part ii., ch. ii., § ccx.)
As, however, the termoccupationhas come to signify in common parlance rather a temporary holding than a permanent possession,—e. g., the occupation of Ancona by the French, the occupation of Lisbon by the English, the occupation of the Four Legations by the Austrians, there is an inconvenience in its ambiguity, and from this circumstance it has resulted, thatoccupancyis frequently employed to designate what is, properly speaking, occupation. This however is to be regretted, as the word occupancy is required in its own sense to mark the right to take possession, as distinct from the right to keep possession,—thejus possidendifrom thejus possessionis,—thejus ad rem, as civilians would say, from thejus in re. Thus the right of a nation to colonise a given territory to the exclusion of other nations is a right ofoccupancy; the right of the colonists to exclude foreigners from their settlements would be a right ofoccupation.
Mr. Wheaton, in his Elements of International Law, (l. i., chap. iv., p. 205,) says, “The exclusive right of every independent state to its territory and other property is foundedupon the title originally acquired byoccupancy, and subsequently confirmed by the presumption arising from the lapse of time, or by treaties and other compacts of foreign states.”
It may be gathered from these writers, that to constitute a valid territorial title by occupation, the territory must be previously vacant (res nullius,) and thestatemust intend to take and maintain possession: and that the vacancy of the territory may be presumed from the absence of inhabitants, and will be placed beyond question by the acquiescence of other nations. If those conditions are fulfilled, the proprietary title which results isa perfect title against all other nations.
There are however several acts, that are accessorial to occupation, which do not separately constitute a perfect title. Such acts are Discovery, Settlement, Demarcation. Thus, discovery, may not be accompanied with any intention to occupy, or may not be followed up by any act of occupation within a reasonable time; settlement may be effected in territory not vacant; boundaries may be marked out which encroach upon the territory of others; so that acts of this kind will, separately, only found an imperfect or conditional title: their combination, however, under given circumstances, may establish an absolute and perfect title.
ON TITLE BY DISCOVERY.
Discovery not recognised by the Roman law.—Wolff.—The Discovery must be notified.—Illustration of the Principle in reference to Nootka Sound.—Vattel.—Discovery must be by virtue of a Commission from the Sovereign.—Must not be a transient Act.—Martens’ Précis du Droit des Gens.—Kluber.—Bynkershoek.—Mr Wheaton.—Practice of Nations.—Queen Elizabeth.—Negotiations between Great Britain and the United States, in 1824.—Nootka Sound Controversy.—Discussions between the United States and Russia, in 1822.—Declaration of British Commissioners, in 1826.—Mr. Gallatin’s View.—Conditions attached to Discovery.—No second Discovery.—Wolff.—Lord Stowell.—Progressive Discovery.—Dormant Discoveries inoperative for Title.
Discovery not recognised by the Roman law.—Wolff.—The Discovery must be notified.—Illustration of the Principle in reference to Nootka Sound.—Vattel.—Discovery must be by virtue of a Commission from the Sovereign.—Must not be a transient Act.—Martens’ Précis du Droit des Gens.—Kluber.—Bynkershoek.—Mr Wheaton.—Practice of Nations.—Queen Elizabeth.—Negotiations between Great Britain and the United States, in 1824.—Nootka Sound Controversy.—Discussions between the United States and Russia, in 1822.—Declaration of British Commissioners, in 1826.—Mr. Gallatin’s View.—Conditions attached to Discovery.—No second Discovery.—Wolff.—Lord Stowell.—Progressive Discovery.—Dormant Discoveries inoperative for Title.
Among the acts which are accessorial to occupation, the chief is Discovery. The title, however, which results from discovery, is only an imperfect title. It is not recognised in the Roman law, nor has it a place in the systems of Grotius or Puffendorff. The principle, however, upon which it is based is noticed by Wolff:—
“Pareillement, si quelqu’un renferme un fonds de terre dans des limites, ou la destine à quelque usage par un acte non passager, ou qui, se tenant sur ce fonds limité, il dise en présence d’autres hommes, qu’il veut que ce fonds soit à lui, il s’empare.” (Institutes du Droit des Gens, § 213.)
To this passage M. Luzac has appended the following note, pointing out the application of the principle to international relations:—
“Nous ne trouvons pas cette occupation dans le droit Romain. C’est sur elle que sont fondés les droits que les puissances s’attribuent, en vertu des découvertes.”
It will be seen from the text of M. Wolff, that the intention to take possession at the time of discovery must be declared. The comity of nations, then, presumes that the execution will follow the intention. But the reason of the thing requires that the discovery should be notified at the time when it takes place, otherwise, where actual possession has not ensued, the presumption will be altogether against a discovery, or if therehad been a discovery, that it was a mere passing act, that the territory was never taken possession of, or if so, was abandoned immediately. Unless then the intention to appropriate can be presumed from the announcement of the discovery, which the comity of nations will respect,—if the first comer has not taken actual possession, but has passed on, the presumption will be that he never intended to appropriate the territory. Thus a discovery, when it has been concealed from other nations, has never been recognised as a good title: it is an inoperative act.
A case in point may be cited to illustrate the application of this principle. Mr. Greenhow (p. 116) observes, in reference to the voyage of Perez in 1775,—“The Government of Spain perhaps acted wisely in concealing the accounts of this expedition, which reflected little honour on the courage or the science of the navigators: but it has thereby deprived itself of the means of establishing beyond question the claim of Perez to the discovery of the important harbour called Nootka Sound, which is now, by general consent, assigned to Captain Cook.”
Vattel (b. i., l. xviii., § 207) discusses this title at large:—
“All mankind have an equal right to things that have not yet fallen into the possession of any one, and those things belong to the person who first takes possession of them. When therefore a nation finds a country uninhabited, and without an owner, it may lawfully take possession of it, andafter it has sufficiently made known its will in this respect, it cannot be deprived of it by another nation. Thus navigators going on voyages of discovery, furnishedwith a commission from their sovereign, and meeting with islands or other lands in a desert state, have taken possession of them in the name of the nation; and this title has been usually respected, provided it was soon after followed by a real possession.”
According to this statement, the act of discovery must be sanctioned by a commission from the sovereign, and the will of the nation to take possession must be by its agent sufficiently made known. What acts should be respected by the courtesy of nations, and be held sufficient to make known formally the will of a nation to avail itself of a discovery, has been a subject of much dispute. The tendency, however, both of writers and statesmen, has been to limit rather than to extend the title by discovery, ever since the Papal Bulls ofthe 16th century enlarged it to an inconvenient extent, to the exclusive benefit of two favoured nations.
Thus Vattel:—“The law of nations will, therefore, not acknowledge the property and sovereignty of a nation over any uninhabited countries except those of which it has really taken actual possession, in which it has formed settlements, or of which it makes actual use. In effect, when navigators have met with desert countries in which those of other nations had, in their transient visits, erected some monuments to show their having taken possession of them, they have paid as little regard to that empty ceremony as to the regulation of the Popes, who divided a great part of the world between the crowns of Castile and Portugal.”
To the same purport, Martens, in his Précis du Droit des Gens, § 37:—
“Supposé que l’occupation soit possible, it faut encore qu’elle ait eu lieu effectivement,—que le fait de la prise de possession ait concouru avec la volonté manifeste de s’en approprier l’objet. La simple déclaration de volonté d’une nation ne suffit pas non plus qu’une donation papale, ou une convention entre deux nations pour imposer à d’autres le devoir de s’abstenir de l’usage ou de l’occupation de l’objet en question. Le simple fait d’avoir été le premier à découvrir ou à visiter une île, &c., abandonnée ensuite, semble insuffisant, même de l’aveu des nations, tant qu’on n’a point laissé de traces permanentes de possession et de volonté, et ce n’est pas sans raison qu’on a souvent disputé entre les nations, comme entre les philosophes, si des croix, des poteaux, des inscriptions, &c., suffisent pour acquérir ou pour conserver la propriété exclusive d’un pays qu’on ne cultive pas.”
Kluber, to the same effect, writes thus: (§ 126)—“Pour acquérir une chose par le moyen de l’occupation, il ne suffit point d’en avoir seulement l’intention, ou de s’attribuer une possession purement mentale; la déclaration même de vouloir occuper, faite antérieurement à l’occupation effectuée par un autre, ne suffirait pas. Il faut qu’on ait réellement occupé le premier, et c’est par cela seul qu’en acquérant un droit exclusif sur la chose, on impose à tout tiers l’obligation de s’en abstenir. L’occupation d’une partie inhabitée et sans maître du globe de la terre, ne peut donc s’étendre plus loin qu’on ne peut tenir pour constant qu’il y ait eueffectivement prise de possession, dans l’intention de s’attribuer la propriété. Comme preuves d’une pareille prise de possession, ainsi quede la continuation de la possession en propriété, peuvent servir tous les signes extérieurs qui marquent l’occupation et la possession continue.”
On this passage there is the following note:—“Le droit de propriété d’état peut, d’après le droit des gens, continuer d’exister, sans que l’état continue la possession corporelle. Il suffit qu’il existe un signe qui dit, que la chose n’est nires nullius, ni délaissée. En pareil cas personne ne saurait s’approprier la chose, sans ravir de fait, à celui qui l’a possédée jusqu’alors en propriété, ce qu’il y a opéré de son influence d’une manière légitime: enlever ceci ce serait blesser le droit du propriétaire.”
It would be difficult to determine theoretically what would constitute a sufficient sign that the territory is not vacant, or abandoned. Bynkershoek, who was opposed to the continuance of proprietary right from discovery, unless corporeal possession was maintained, subsequently qualified his view. “Præter animum possessionem desidero, sed qualemcunque, quæ probet, me nec corpore desiisse possidere.” (De Dominio Maris, ch. i., De Origine Dominii.)
Mr. Wheaton, in his work on International Law, (vol. i., ch. iv., § 5,) writes thus:—“The claim of European nations to the possessions held by them in the New World discovered by Columbus and other adventurers, and to the territories which they have acquired on the continents and islands of Africa and Asia, was originally derived from discovery or conquest and colonisation, and has since been confirmed in the same manner by positive compact.”
The practice of nations seems fully to bear out the theory of jurists, as it may be gathered from the language of sovereigns and statesmen. Thus, in reference to the northwest coast of America, on occasion of the earliest dispute between the crowns of Spain and England, Queen Elizabeth refused to admit the exclusive pretensions of the Spaniards. When Mendoza, the Spanish ambassador, remonstrated against the expedition of Drake, she replied, “that she did not understand why either her subjects, or those of any other European prince, should be debarred from traffic in the Indies: that, as she did not acknowledge the Spaniards to have any title by donation of the Bishop of Rome, so she knew no right they had to any places other than those they were in actual possession of; for that their having touched only here and there upon a coast, and given names to a few rivers or capes, weresuch insignificant things as could in no ways entitle them to a propriety further than in the parts where they actually settled, and continued to inhabit.” (Camden’s Annals, anno 1580.)
Such was the language of the Crown of England in the sixteenth century, and in no respect is the language of Great Britain altered in the present day. Thus, in reference to the negotiations between Great Britain and the United States, in 1824, Mr. Rush, in a letter to Mr. Adams, of August 12, 1824, writes thus:—“As to the alleged prior discoveries of Spain all along that coast, Britain did not admit them, but with great qualification. She could never admit that the mere fact of Spanish navigators having first seen the coast at particular points, even where this was capable of being substantiated as the fact, without any subsequent or efficient acts of sovereignty or settlement following on the part of Spain, was sufficient to exclude all other nations from that portion of the globe.” (State Papers, 1825-26, p. 512.)
But the Spanish crown itself, on the occasion of the Nootka Sound controversy, felt that a claim to exclusive territorial title could not be reasonably maintained on the plea of mere discovery. Thus, in the Declaration of his Catholic Majesty, on June 4, 1790, which was transmitted to all the European Courts, and consequently bound the Crown of Spain in the face of all nations, the following precise language was employed:—
“Nevertheless, the King does deny what the enemies to peace have industriously circulated, that Spain extends pretensions and rights of sovereignty over the whole of the South Sea, as far as China. When the words are made use of, ‘In the name of the King, his sovereignty, navigation, and exclusive commerce to the continent and islands of the South Sea,’ it is the manner in which Spain, in speaking of the Indies, has always used these words,—that is to say, to the continent, islands, and seas which belong to his Majesty,so far as discoveries have been made and secured to him by treaties and immemorial possession, and uniformly acquiesced in, notwithstanding some infringements by individuals, who have been punished upon knowledge of their offences. And the King sets up no pretensions to any possessions, the right to which he cannot prove by irrefragable titles.”
The pretensions of Spain to absolute sovereignty,commerce, and navigation, had already been rejected by the British Government, and they had insisted that English subjects, trading under the British flag, “have an indisputable right to the enjoyment of a free and uninterrupted navigation, commerce, and fishery; and to the possession of such establishments as they should form,with the consent of the natives of the country, not previously occupied by any of the European nations.”
Again, the Crown of Spain, in demanding assistance from France, according to the engagements of the Family Compact, rested her supposed title upon “treaties, demarcations,takings of possession, and the most decided acts of sovereignty exercised by the Spaniards from the reign of Charles II., and authorised by that monarch in 1692.”
It will thus be seen that Spain, in setting up a title by discovery, supported her claims by alleging that the act was authorised by the Crown, was attended with “takings of possession,” and was confirmed by treaties, e. g., that of Utrecht.
To a similar purport, in the discussions which took place between Russia and the United States of America, in respect to the north-west coast of America, which ultimately resulted in the convention signed at St. Petersburgh, 5/17 April, 1824, the Chevalier de Poletica, the Russian minister at Washington, in his letter of 28th February, 1822, to the American Secretary of State, grounded the claims of Russia upon these three bases, as required by the general law of nations and immemorial usage among nations:—“The title of first discovery; the title of first occupation; and, in the last place, that which results from a peaceable and uncontested possession of more than half a century.” (British and Foreign State Papers, 1821-22, p. 485.)
To a similar purport the British Commissioners, Messrs. Huskisson and Addington, in the sixth conference held at London, December 16, 1826, maintained this doctrine:—“Upon the question how far prior discovery constitutes a legal claim to sovereignty, the law of nations is somewhat vague and undefined. It is, however, admitted by the most approved writers, that mere accidental discovery, unattended by exploration—by formally taking possession in the name of the discoverer’s sovereign—by occupation and settlement, more or less permanent—by purchase of the territory, or receiving the sovereignty from the natives—constitutes thelowest degree of title; and that it is only in proportion as first discovery is followed by any or all of these acts, that such title is strengthened and confirmed.”
In accordance with the same view, the plenipotentiary of the United States, Mr. Gallatin, in his counter-statement, which Mr. Greenhow has appended to the second edition of his work, asserts that “Prior discovery gives a right to occupy, provided that occupancy take place within a reasonable time, and is followed by permanent settlements and by the cultivation of the soil.”
It thus seems to be universally acknowledged, that discovery, though it gives a right of occupancy, does not found the same perfect and exclusive title which grows out of occupation; and that unless discovery be followed within a reasonable time by some sort of settlement, it will be presumed either to have been originally inoperative, or to have been subsequently abandoned.
It seems likewise to be fully recognised by the law of nations, as based upon principles of natural law, and as gathered from the language of negotiations and conventions, that in order that discovery should constitute an inchoate title to territory, it must have been authorised by the sovereign power, must have been accompanied by some act of taking possession significative of the intention to occupy, and must have been made known to other nations.
Thus Lord Stowell (in the Fama, 3 Rob. p. 115) lays it down, that “even in newly discovered countries,where a title is meant to be establishedfor the first time, some act of possession is usually done and proclaimed as anotification of the fact.”
There can be no second discovery of a country. In this respect title by discovery differs from title by settlement. A title by a later settlement may be set up against a title by an earlier settlement, even where this has been formed by the first occupant, if the earlier settlement can be shown to have been abandoned.
M. Wolff explains the reason of this very clearly (§ cciii.:)—“On dit qu’une chose est abandonnée, si simplement son maître ne veut pas qu’elle soit plus long temps sienne, c’est à dire, que l’acte de sa volonté ne contienne rien de plus que ceci, que la chose ne doit plus être à lui. D’où il paroit, que celui qui abandonne une chose cesse d’en être le maître, et que par conséquent une chose abandonnée devient une chose qui n’està personne; mais qu’aussi long temps que le maître n’a pas l’intention d’abandonner sa chose, il en reste le maître.”
The same writer observes elsewhere (§MCMXXXIX.)—“L’abandon requis pour l’usucaption, et pour la préscription qui en est la suite, ne se présume pas aussi aisément contre les nations qu’entre les particuliers, à cause d’un long silence.”
A title by second discovery cannot, from the nature of the thing, be set up against a title by first discovery. The termsecond discoveryitself involves a contradiction, and where the discovery has been progressive, “further discovery” would seem to be the more correct phrase. A case can certainly be imagined, where a later discovery may be entitled to greater consideration than a prior discovery, namely, where the prior discovery has been kept secret; but in such a case the prior discovery is not a discovery which the law of nations recognises, for it has not been made known, at the time when it took place, to other nations; and the inconvenience which would attend the setting up of claims of discovery long subsequently to the event upon which they are professed to be based, would be so great, that the comity of nations does not admit it. The comity of nations, indeed, in sanctioning title by discovery at all, as distinct from title by occupation, has sought to strengthen rather than to impugn the proprietary right of nations; but no territorial title would be safe from question, if the dormant ashes of alleged discoveries might at any time be raked up.
TITLE BY SETTLEMENT.
Title by Settlement an imperfect Title.—Presumption of Law in its Favour.—Made perfect by undisturbed Possession.—Wheaton.—Title by Usucaption or Prescription.—Vattel.—Acquiescence a Bar to conflicting Title of Discovery.—Hudson’s Bay Settlements.—Treaty of Utrecht.—The Vicinitas of the Roman Law.—Mid-channel of Rivers.—Contiguity, as between conterminous States, a reciprocal Title.—Negotiations between Spain and the United States of America.—Vattel.—Territorial Limits extended by the Necessity of the Case.—Right of Maritime Jurisdiction, how far accessorial to Right of Territory.—Right of Pre-emption.—New Zealand.—North American Indians.—Right of Innocent Use.
Title by Settlement an imperfect Title.—Presumption of Law in its Favour.—Made perfect by undisturbed Possession.—Wheaton.—Title by Usucaption or Prescription.—Vattel.—Acquiescence a Bar to conflicting Title of Discovery.—Hudson’s Bay Settlements.—Treaty of Utrecht.—The Vicinitas of the Roman Law.—Mid-channel of Rivers.—Contiguity, as between conterminous States, a reciprocal Title.—Negotiations between Spain and the United States of America.—Vattel.—Territorial Limits extended by the Necessity of the Case.—Right of Maritime Jurisdiction, how far accessorial to Right of Territory.—Right of Pre-emption.—New Zealand.—North American Indians.—Right of Innocent Use.
Title by settlement, like title by discovery, is of itself an imperfect title, and its validity will be conditional upon the territory being vacant at the time of the settlement, either as never having been occupied, or as having been abandoned by the previous occupant. In the former case, it resolves itself into title by occupation; in the latter, the consent of the previous occupant is either expressed by some convention, or presumed from the possession remaining undisputed. Title by settlement, however, differs from title by discovery, or title by occupation, in this respect,—that no second discovery, no second occupation can take place, but a series of settlements may have been successively made and in their turn abandoned, so that the last settlement, when confirmed by a certain prescription, may found a good territorial title. Again, the presumption of law will always be in favour of a title by settlement. “Commodum possidentis in eo est, quod etiamsi ejus res non sit, qui possidet, si modo actor non potuerit suam esse probare, remanet in suo loco possessio; propter quam causam, cum obscura sint utriusque jura contra petitorem judicari solet.” (Inst., l. iv., tit. 15, § 4.)
Where title by settlement is superadded to title by discovery, the law of nations will acknowledge the settlers to have a perfect title; but where title by settlement is opposed to title by discovery, although no convention can be cited inproof of the discovery having been waived, still, a tacit acquiescence on the part of the nation that asserts the discovery, during a reasonable lapse of time since the settlement has taken place, will bar its claim to disturb the settlement. Thus, Mr. Wheaton (part ii., chap. iv., § 5) writes:—“The constant and approved practice of nations shows, that by whatever name it be called, the uninterrupted possession of territory or other property, for a certain length of time, by one state, excludes the claim of every other, in the same manner as by the law of nations, and the municipal code of every civilized nation, a similar possession by an individual excludes the claim of every other person to the article of property in question. This rule is founded upon the supposition, confirmed by constant experience, that every person will naturally seek to enjoy that which belongs to him; and the inference fairly to be drawn from his silence and neglect, of the original defect of his title, or his intention to relinquish it.”
Title, then, by settlement, though originally imperfect, may be thus perfected by enjoyment during a reasonable lapse of time, the presumption of law from undisturbed possession being, that there is no prior owner, because there is no claimant,—no better proprietary right, because there is no asserted right. The silence of other parties presumes their acquiescence: and their acquiescence presumes a defect of title on their part, or an abandonment of their title. A title once abandoned, whether tacitly or expressly, cannot be resumed. “Celui qui abandonne une chose cesse d’en être le maître, et par conséquent une chose abandonnée devient une chose qui n’est à personne.” (Wolff, cciii.)
Title by settlement, then, as distinguished from title by discovery, when set up as a perfect title, must resolve itself into title byusucaptionorprescription. Wolff defines usucaption to be an acquisition of domain founded on a presumed desertion. Vattel says it is the acquisition of domain founded on long possession, uninterrupted and undisputed, that is to say, an acquisition solely proved by this possession.Prescription, on the other hand, according to the same author, is the exclusion of all pretensions to a right—an exclusion founded on the length of time during which that right has been neglected; or, according to Wolff’s definition, it is the loss of an inherent right by virtue of a presumed consent. Vattel, writing in French, and observing that the word usucaption was but little used in that language, made use of the wordprescriptionwhenever there were no particular reasons for employing the other. The same remark may be applied in reference to our own language, and thus this title is generally spoken of astitle by prescription.
What lapse of time is requisite to found a valid title by prescription has not been definitely settled. The law of nature suggests no rule. Where, however, the claimant cannot allege undoubted ignorance on his part, or on the part of those from whom he derives his right, or cannot justify his silence by lawful and substantial reasons, or has neglected his right for a sufficient number of years as to allow the respective rights of the two parties to become doubtful, the presumption of relinquishment will be established against him, and he will be excluded by ordinary prescription. Lapse of time, in the case equally of nations as of individuals, robs the parties of the means of proof: so that if abonâ fidepossession were allowed to be questioned by those who have acquiesced for a long time in its enjoyment by the possessors, length of possession, instead of strengthening, would weaken territorial title. This result would be so generally inconvenient, as to be inadmissible.
Thus, in regard to the territories of the Hudson’s Bay Company, it was alleged in the negotiations preliminary to the Treaty of Utrecht, that the French had acquiesced in the settlement of the Bay of Hudson by the Company incorporated by Charles II. in 1663; since M. Fontenac, the Governor of Canada, in his correspondence with Mr. Baily, who was Governor of the Factories in 1637, never complained, “for several years, of any pretended injury done to the French by the said Company’s settling a trade and building of forts at the bottom of the bay.” (General Collection of Treaties, &c. London, 1710-33, vol. i., p. 446.) The King of England, it is true, in his charter had set forth the title of the British Crown, as founded on discovery: the title by discovery, however, required to be perfected by settlement; and thus, in the negotiations, the subsidiary title by settlement was likewise set up by the British Commissioners, and the acquiescence of the French was alleged, either as a bar to their setting up any conflicting title by discovery, or as establishing the presumption of their having abandoned their asserted right of discovery.
What amount ofcontiguousterritory attaches to a settlement, so as to prevent the titles of two nations from conflictingby virtue of adjoining settlements, seems to be governed by no fixed rule, but must depend on the circumstances of the case. Vattel observes (l. ii., § 95,) “If, at the same time, two or more nations discover and take possession of an island, orany other desert land without an owner, they ought to agree between themselves, and make an equitable partition; but, if they cannot agree, each will have the right of empire and the domain in the parts in which they first settled.” The title ofvicinitaswas recognised in the Roman law, in the case of recent alluvial deposits, as entitling the possessor of the adjoining bank to a claim of property; but, if it were an island formed in the mid-channel, there was a common title to it in the proprietors of the two banks. “Insula nata in flumine, quod frequenter accidit, si quidem mediam partem fluminis tenet, communis est eorum, qui ab utraque parte fluminis prope ripam prædia possident, pro modo latitudinis cujusque fundi, quæ latitudo prope ripam sit: quod si alteri parti proximior est, eorum est tantum, qui ab ea parte prope ripam prædia possident.” (Inst. ii., tit. i., § 22.) So, in the case where a river abandons its former channel, the ancient bed belongs to those “qui prope ripam prædia possident;” and in the Digest (xli., tit. i., l. 7,) we have a case supposed where a river has changed its course, and occupied for a time the entire property (totum agrum) of an individual, and then deserted its new channel: the Roman law did not consider that, strictly speaking, the title of the former proprietor revived, inasmuch as he had no adjoining land. “Cujus tamentotum agrumnovus alveus occupaverit, licet ad priorem alveum reversum fuerit flumen; non tamen is, cujus is ager fuerat, stricta ratione quicquam in eo alveo habere potest: quia et ille ager, qui fuerat, desiit esse, amissâ propriâ formâ: et quia vicinum prædium nullum habet, non potestratione vicinitatisullam partem in eo alveo habere.”
Again, in the case of a river, the banks of which are possessed by contiguous states, the presumption of law is, that theThalweg, or mid-channel, is the mutual boundary; since rivers are, in the case of conterminous states,communis juris, unless acknowledged by them to be otherwise, or prescribed for by one of the parties. “The general presumption,” observes Lord Stowell, (in the Twee Gebroeders, 3 Rob., p. 339,) “certainly bears strongly against such exclusive rights, and the title is matter to be established on the part of those claimingunder it, in the same manner as all other demands are to be substantiated, by clear and competent evidence.”
A title by contiguity, as between conterminous states, would thus appear to be a reciprocal title: it cannot be advanced by one party, excepting as a principle which sanctions a corresponding right in the other. The practice is in accordance with this. Thus, the United States of America, in its discussions with Spain respecting the western boundary of Louisiana, contended, that “whenever one European nation makes a discovery, and takes possession of any portion of that continent (sc., of America,) and another afterwards does the same at some distance from it, where the boundary between them is not determined by the principle above mentioned, (sc., actual possession of the sea-coast,) the middle distance becomes such of course.” (British and Foreign State Papers, 1817-18, p. 328.)
Circumstances however will sometimes create exceptions, as for instance, where the control of a district left unoccupied is necessary for the security of a state, and not essential to that of another: in this case the principle ofvicinitaswould be overruled by higher considerations, as it would interfere with the perfect enjoyment of existing rights of established domain.
Thus Vattel, l. i., § 288. “A nation may appropriate to herself those things of which the free and common use would be prejudicial or dangerous to her. This is a second reason for which governments extend their dominion over the sea along their coasts, as far as they are able to protect their rights. It is of considerable importance to the safety and welfare of the state that a general liberty be not allowed to all comers to approach so near their possessions, especially with ships of war, as to hinder the approach of trading nations, and molest their navigation.” And again, after stating that it was not easy to determine strictly the limits of this right, he goes on to say: “Each state may, on this head, make what regulation it pleases so far as respects the transactions of the citizens with each other, or their concerns with their sovereign, but, between nation and nation, all that can reasonably be said is, that in general, the dominion of the state over the neighboring sea extends as far as her safetyrenders it necessaryand her power is able to assert it; since on the one hand she cannot appropriate to herself a thing that is common to all mankind, such as the sea, except so far as shehas need of it for some lawful end,and on the other, it would be a vain and ridiculous pretension to claim a right which she were wholly unable to assert.” At present, by the general law of nations, the possession of the coast is held to entitle a nation to exclusive jurisdiction over the adjoining seas to the extent of a marine league, as being necessary for the free execution of her own municipal laws, and as being within the limits which she can command by her cannon. On the ground then of her own right of self-preservation, a nation which has made a settlement may possess a perfect right of excluding other nations from settling within a given distance. This right, however, is evidently an accessory of the right of settlement.
A further accessorial right of settlement has, in modern times, been recognised by the practice of civilised nations in both hemispheres, namely, a right of pre-emption from the aboriginal inhabitants in favor of the nation which has actually settled in the country. It is this right which Great Britain asserts against all other civilised nations in respect to New Zealand, and which the United States of America assert against all other civilised nations in respect to the native Indians. The claim involved in it is evidently based upon the principle, that the acquisition of such territory by any other nation would be prejudicial to the full enjoyment of the existing territorial rights of the nation which has made settlement there. Such seems to be the only recognised ground upon which aperfect right of contiguitycan be set up. The principle of mere vicinity in the case of nations, unless strictly limited, will only result in furnishing a graceful pretext for the encroachments of the strong upon the weak, whenever a powerful state should cast a longing eye upon an adjoining district, and feel a natural inclination to render its own possessions more complete:
Oh si angulus illeProximus accedat, qui nunc deformat agellum.
The right ofinnocent useseems to have been admitted into the code of international law in order to obviate the strength of this temptation, but it is only an imperfect right, unlike that of necessity, and all attempts to construct a title upon principles of convenience can result only in imperfect titles, which require the express acknowledgment of other nations to give them validity.
ON DERIVATIVE TITLE.