CHAPTER XXVIII.

INTERNATIONAL EMINENT DOMAIN.

In the course of events it frequently happens that necessity demands that the great body of outside nations shall have a way of transit through and over the lands and territorial waters of an obstructing nation. The right is founded on the principle that a nation holds sovereignty over a particular portion of the earth only so long as it uses the same in the interest of the world's progress and betterment. When it acts in hostility to the plain dictates of civilization and humanity the family of nations will interfere and compel proper civility and neighborly intercourse.

The family of nations is the forum of the world and its decree must be obeyed by the offending nation. The red man of America, the barbarian of Africa and the cannibal of the Oceanic Isles were brought under subjection through this civilizing principle. Perhaps not by a formal decision by the world powers, but by and with their implicit consent and approval.

Even nations now claiming to be civilized have to be brought under subjection and tutelage by combined international powers. International law compels nations to observe their proper duties to other members of the national family; and International Eminent Domain is a high power that must at times be exerted to enforce international duties and obligations.

Eleven years ago we prepared an article on this subject which was printed in the Wilmington, Del.,

Morning News on January 30, 1904, and reprinted in the Chicago Legal News February 6th, of the same year, which article was in substance as follows:

All intelligent nations now know that the earth's surface comprises two extensive continents, separated by two vast oceans, thousands of miles in width. Retrospect teaches us how short a period of time this fact has been known; and, also, how rapidly we are advancing in knowledge and civilization.

The land surface of the earth is now largely occupied, in severalty, by many governmental nations and tribes, while the great seas remain the common domain of all. This occupancy of the lands and these joint rights in the seas originated from natural impulse and instinct rather than from express written compact. It is perhaps an economy of nature that the world's territorial government should for most purposes be by units, rather than by one centralized comprehensive entirety.

In the remote past such a concentrated government would have been an impossibility; for even at the dawn of the Christian era the ruling nations or tribes had little knowledge of, or commerce with those living in different and remote parts of the world. In those times of limited travel and trade very little was known of what is now termed international law. It was not then needed. Neither can we expect to find international law in the age of hieroglyphics. Christianity, civilization and the printing press are the progenitors of the jus inter gentes.

This law, like all other human law, is not stable, but is ever changing from age to age with the circumstances that wield the destiny of nations. That which

makes it can unmake it at pleasure. Its keeping must always remain in the hands of the ruling nations; and it is binding just so far as there is power to enforce it. NATIONAL RELATIONSHIP.

Nations are becoming more closely connected as education and invention develop. The ocean cables, the wireless telegraph and the rapid steaming leviathans of the twentieth century bring the people of the world into daily contact and communication. We cannot, if we would, seclude ourselves in the desert nor in the mountain wilderness. We are drawn willingly or unwillingly into the world's struggles, commerce and warfares. This situation is not peculiar to the United States alone, but likewise affects all nations in the ruling class.

During this transition from the lower to the higher civilization our national rights, needs and duties are ever increasing. The Esquimau of the frozen North has but little need of railroads and ship canals. The planter on a small tropical isle may need ships and canals but not the railroad. Yet the active, hustling nations of the temperate zone engaged in all branches of the world's traffic and, often by necessity in its wars, needs and should have all privileges, rights and benefits in the seas and lands of the world that a wise and universal policy may demand.

In legal theory an independent nation owns not only its sovereignty but its territory; still, whatever it does own is subject to conquest in a just cause by a stronger power or a combination of powers. A nation, also in theory, controls its subjects; yet combined international power may control both the nation and its subjects. A magna charta, a constitution, or a state code is of no avail against an overpowering hostile army. Following the Norman conquest British land

titles were divested; the landlord became vassal, sovereignty was overthrown and a new regime was erected upon the fearful wreck. Modern international law has revoked this Norman rule, and conquest now overthrows sovereignty only, and leaves the private land titles vested in the prior owner. In 1825 Chief Justice Marshall decided that the African slave trade was legal by the law of nations; but before the elapse of twentyfive years the powers of the world decreed this trade to be illegal and the slave dealer was driven from the high seas.

Theorists may not approve of this doctrine of forcible national action, but if in any given case universal policy approves the act, it passes into the realm of res adjudicata and becomes final. This is the court of last resort; there is no higher appeal so far as worldly power extends. Thus the world powers rule the world, and this becomes more emphatic day by day. The people of the world constitute these powers-and who shall reverse what the people have decided?

All writers on international law lay down the rule that nations are equal in their sovereignty and that no one can (without consent) invade the domain of another. But these authors show, before reaching their closing pages, that there are numerous exceptions to the rule and that in many instances sovereignty may justly be invaded. These exceptions make the rule a limited one, and thus wholly destroy its universality. When the gate is opened to let in one exception it will be difficult to close it against a host of others following in the same line and with credentials fully as strong. By conceding that the sovereignty of a nation may in certain cases be invaded by another nation we do not admit the doctrine that "might makes right," because this adage is neither universally true nor universally false; for might makes

right when it is right, and only the right should prevail.

The deduction from these premises is that the property and sovereignty of a nation, if needed for a high international purpose, may be invaded, and, to that extent, may be appropriated under the doctrine of international eminent domain subject to the payment of a just compensation, if the right to compensation has not been forfeited. The cases in which this rule may be enforced are not enumerated in any tabulated list, but each case is determined by its own circumstances.

PRECEDENTS.

Are there precedents for the doctrine that an international way can be built through the domain of a nation without her consent? A perfect parallel may be difficult to find, but analogy is so close that it may be said that history furnishes ample precedent.

The Suez canal became a necessity and was made, perhaps, by agreement of the parties in interest; but if consent had been refused and the civilized powers had determined that the canal was needed the refusal of consent would not have prevented its construction. The straits of the Dardanelles and the Bosphorus lie wholly within the empire of Turkey, still they were compelled by the treaty of five nations to be kept open to the merchant shipping of the world. The rivers Danube, Scheldt and Rhine in Europe, and the St. Lawrence and the Yukon in North America, and the Amazon and the La Plata in South America furnish instances where the ocean end of the river belonged to one sovereignty, and the source end to another. Treaties (more or less voluntary) have made these rivers free to the world's commerce. If this had not been accomplished by express compact the shut-in nations would, by conquest or in