bounds of territory. If they do not belong to the United States of America, any other power might occupy them; they might be embanked and fortified. What a thorn would this be in the side of America! It is physically possible, at least, that they might be so occupied by European nations, and then the command of the river would be no longer in America, but in such settlements. The possibility of such a conse

[*258] quence is enough to expose the fallacy of any arguments that

are addressed to show that these islands are not to be considered as part of the territory of America. Whether they are composed of earth or solid rock, will not vary the right of dominion; for the right of dominion does not depend upon the texture of the soil. I am of opinion that the right of territory is to be reckoned from those islands.” • "(~)

It was not without reason that the ancients worshipped the God Terminus on account of the fidelity with which he preserved the Rights of Property between nations as well as individuals, and because they saw that if his jurisdiction were to cease, quarrels would be endless.

"Tu populos urbesque et regna ingentia finis.”(s)

The River and the Mountain are not necessary land-marks;(t) there may be, and often are, artificial landmarks wholly irrespective of any natural boundaries. In these cases, the change in the course of the river has no effect upon the property. But in countries which have no other limit than a river, there is a distinction to be taken, according to Grotius, between a change made in the course of a river by imperceptible degrees, and a change made all at once. In the *former case, [*259] the river, being the same, continues to be the boundary; in the latter, the river leaving its old channel all at once, it is no longer reckoned the same: the old bed of the river continues to be the boundary.

CCXLI. The nature of Occupation is not confined to any one class or description; it must be a beneficial use and occupation (le travail d'appropriation; (v)) but it may be by a settlement for the purpose of prosecuting a particular trade, such as a fishery, or for working mines, or pastoral occupations, as well as agriculture, though Bynkershoek is cor

The Anna, 5 Robinson's A. R. p. 373.

"Conveniunt celebrantque dapes vicinia simplex,

Et cantant laudes, Termine sancte, tuas.

Tu populos urbesque et regna ingentia finis;
Omnis erit sine te litigiosus ager.

Nulla tibi ambitio est: nullo corrumperis auro,
Legitimâ servas credita rura fide."

(t) Grotius, 1. ii. c. iii. ss. 16, 17.

Heffters, s. 66: Grenzen der Staatsgebiete.

Ovid. Fasti.

Traité des Limites entre la Brasil et la République Orientale de l'Uruguay, Annuaire des deux Mondes, 1851-2. Appendix, p. 985.

Klüber, s. 133.

Günther, II. Kap. 4.

Rutherforth, b. ii. c. ix. vii. p. 491. (ed Baltimore, 1832.)

(v) Eug. Ortolan, Dom. Intern. p. 37.

rect in saying, "cultura utique et cura agri possessionem quam maximè indicat."(x)

Vattel justly maintains that the pastoral occupation of the Arabs entitled them to the exclusive possession of the regions which they inhabit. "Si les Arabes pasteurs voulaient cultiver soigneusement la terre, un moindre espace pourrait leur suffire. Cependant, aucune autre nation n'est en droit de les resserrer, à moins qu'elle ne manquât absolument de terre; car enfin ils possèdent leur pays; ils s'en servent à leur manière ; ils en tirent un usage convenable à leur genre de vie; sur lequel ils ne reçoivent la loi de personne.(y)

It has been truly observed that, "agreeably to this rule, the North American Indians would have been entitled to have excluded the British fur-traders from their hunting grounds; and not having done so, the latter must be considered as having been admitted to a joint occupation of the territory, and thus to have become invested with a similar right of excluding strangers from such portions of the country as their own industrial operations pervade."(z)

*CCXLII. A similar settlement was founded by the British and Russian Fur Companies in North America.

[*260]

The chief portion of the Oregon Territory is valuable solely for the fur-bearing animals which it produces. Various establishments in different parts of this territory organised a system for securing the preservation of these animals, and exercised for these purposes a control over the native population. This was rightly contended to be the only exercise of proprietary right of which these particular regions at that time were susceptible; and to mark that a beneficial use was made of the whole territory by the occupants.

CCXLIII. It should be mentioned that the practice of nations in both hemispheres is to acknowledge, in favour of any civilized nation making a settlement in an uncivilized country, a right of pre-emption of the contiguous territory from the native inhabitants as against any other civilized nation.(a) It is a right claimed by Great Britain with respect to her Austrian settlements, especially New Zealand; and by the United States of America with respect to the Indians in their back States.(b)

CCXLIV. The Bulls of Alexander VI. reserved from the grant to Spain all lands previously acquired by any Christian nation. It is much to be lamented, both for the influence of Christianity and the honour of Europe, that the regard, which has been shown of late years, for the rights of natives in those countries, into which the overflowings of European population have been poured, was not exhibited at an earlier period.

.

It may indeed be justly said, that the Earth was intended by God to supply the wants of the general family of mankind, and that the cultivation of the soil is an obligation *imposed upon man: and it seems a fair conclusion from these premises, that when the population. of a country exceeds the means of support which that country can afford,

(y) Vattel, 1. ii. s. 97.

(x) De Dominio Maris, vol. vi. c. i. p. 360.
2) The Oregon Question, a pamphlet by Edward J. Wallace, 1846, p. 25.
Wallace's Pamphlet, p. 28.

(b) Twiss, Oregon, p. 166.

[*261]

they have a right, not only to occupy uninhabited districts (which, indeed, they would be entitled to do irrespectively of this emergency), but also to make settlements in countries capable of supporting large numbers by cultivation, but at present wandered over by nomade or hunting tribes. Vattel goes further, and gives a right to expel by force the inhabitants of a country, who, refusing to cultivate the soil, live entirely by rapine on their neighbours; and such people, like the modern Buccaneers in the Chinese Seas, may lawfully be treated as pirates.

CCXLV. To return, however, to the previous question. Vattel says: “Ceux qui retiennent encore ce genre de vie oisif, usurpent plus de terrain qu'ils n'en auraient besoin avec un travail honnête, et ils ne peuvent se plaindre, si d'autres nations, plus laborieuses et trop resserrées, viennent en occuper une partie. Ainsi, tandis que la conquête des empires policés du Pérou et de Mexique a été une usurpation criante, l'établissement de plusieurs colonies dans le continent de l'Amérique septentrionale pouvait, en se contenant dans de justes bornes, n'avoir rien que de trèslégitime. Les peuples de ces vastes contrées les parcouraient plutôt qu'ils ne les habitaient." (c)

And again: "On ne s'écarte donc point des vues de la nature, en resserrant les sauvages dans des bornes plus étroites. Cependant, on ne peut que louer la modération des Puritains Anglais, qui les premiers s'établirent dans la Nouvelle Angleterre. Quoique munis d'une charte de leur souverain, ils achetèrent des sauvages le terrain qu'ils voulaient occuper. Ce louable exemple fuit suivi par * Guillaume Penn et la colonie [*262] de Quackers, qu'il conduisit dans la Pennsylvanie.”(d) Though it is to be hoped that this comparison in favour of Great Britain is, in great measure, founded in justice, it cannot be denied that she is not without her share in the guilt of forcibly dispossessing and exterminating unoffending inhabitants of countries with whom she had no just cause of war. "The patent granted by King Henry VII. of England to John Cabot and his sons authorised them to seek out and discover all islands, regions, and provinces whatsoever that may belong to heathens and infidels,' and, to subdue, occupy, and possess these territories, as his vassals and lieutenants.' In the same manner the grant from Queen Elizabeth to Sir Humphrey Gilbert empowers him to discover such remote heathen and barbarous lands, countries, and territories, not actually possessed of any Christian prince or people, and to hold, occupy, and enjoy the same, with all their commodities, jurisdictions, and royalties."(e) Most truly does Mr. Wheaton say, "There was one thing in which they" (i. e. the European nations) "all agreed, that

(c) Vattel, t. i. 1. i. c. vii. s. 81.

(d) Vattel, t. i. 1. i. c. xviii. s. 209.

"He that brings wealth home is seldom interrogated by what means it was obtained. This, however, is one of those modes of corruption with which mankind ought always to struggle, and which they may in time hope to overcome. There is reason to expect that as the world is more enlightened, policy and morality will at last be reconciled, and that nations will learn not to do what they would not suffer."-Thoughts on the Transactions relating to the Falkland Islands, 1771, by Dr. Johnson; Works, vol. xii. pp. 123, 124.

(e) Wheaton's Elements (English ed.,) pp. 209, 210.

of almost entirely disregarding the right of the native inhabitants of these regions."(ƒ)

CCXLVI. Nor can a better excuse for such conduct be alleged than the detestable doctrine, which it is melancholy to find maintained by some modern writers, viz. that International Law is confined in its application to European *territories. A denial of this doctrine formed part of an earlier chapter of this work,(g) and need not be more particularly referred to in this place.

[*263]

It must be remembered that Penn, though formally commissioned by his sovereign, acquired his territory by treaty and convention with the aboriginal inhabitants.

CCXLVII. It may therefore be considered as a maxim of International Law, that Discovery alone, though accompanied by the erection of some symbol of sovereignty, if unaccompanied by acts of a de facto possession, does not constitute a national acquisition.

A different opinion appears, indeed, to have been entertained by the officers of Great Britain in 1774, at the period of her temporary abandonment of the Falkland Islands. But the doctrine in the text may now be said to be very generally established.(h)

CCXLVIII. The practice of nations supports the doctrine of beneficial use and occupation.(i) In a dispute which arose between Great Britain and Spain relative to the subject of Nootka Sound, (4) Spain claimed a large portion of the northwestern coast of America, upon the [*264] ground of priority of discovery and of long possession, confirmed by the 8th Article(7) of the Treaty of Utrecht (1713). The British Government resisted their claim upon the ground that the Earth was the heritage of all mankind, and that it was competent to each State, through the means of occupation and cultivation, to appropriate a portion of it. The dispute was ended by a convention between the two powers, in which it was agreed, that it was lawful for the respective subjects of each to navigate freely the Pacific and the Southern Seas, to land upon the coasts of these seas, to traffic with the natives, and to form settlements; subject to certain conditions specified in the convention.

(f) Wheaton's Elements (English ed.) pp. 209, 210.

(g) Part I. Chapter III.

(h) Eug. Ortolan, Dom. Intern. p. 49, n. 2; Moser's Versuch, Buch 5, p. 541. Wenck. t. iii. p. 815.

Johnson's Works, vol. xii.: Thoughts on the Falkland Islands.

Martens, Rec. t. ii. p. 1.

Inscription que le Lieutenant Clayton, commandant le fort Egmont, fit graver sur une plaque de plomb attachée au fort Egmont pour conserver les droits de la couronne d'Angleterre sur les Isles de Falckland lorsque les Anglais quittèrent le dit fort le 22 Mai, 1774:

"Qu'il soit notoire à toutes les nations que les Isles de Falckland, ainsi que ce Fort, les Magazins, Quais, Havres, Bayes et Criques qui en dépendent, appartiennent de droit uniquement à Sa très-sacrée Majesté George III., Roi de la GrandBretagne, de France, et d'Irlande, Défenseur de la Foi, &c. En foi de quoi cette Plaque a été fixée, et les Pavillons de S. M. Britannique déployés et arborés, comme une marque de possession, par Samuel Guillaume Clayton, Officier commandant aux Isles de Falckland, le 22 Mai, 1774.”

(i) Eug. Ortolan, Dom. Int. p. 48. (k) Wheaton, Elém. t. i. p. 162. (7) Schmaus, ii. 1422. The words of the Article are very vague.

CCXLIX. The claims of the United States of North America upon the Oregon Territory were, as has been shown, chiefly founded upon priority of discovery, both by their own subjects, and by the Spaniards, whose pretensions they had by the Treaty of 1819 inherited. The British Government denied both the fact of prior discovery, and the enormous inference sought to be drawn from it; and most clearly asserted at the same time the right of other nations to occupy vacant portions of the earth wheresoever they might be. The temporary arrangements of 1818 and 1827 were merged in the definitive Treaty of Washington in 1846.(m)

[*265]

*CHAPTER XIII.

PRESCRIPTION.

CCL. The second mode of Original Acquisition is effected by the operation of time, by what English and French jurists term Prescription.(a) In order to arrive at any solution of this difficult question which may be at all satisfactory, it is necessary to make some observations upon the place which Prescription occupies in the systems both of Private and Public Law, as introductory to the consideration of the place occupied by the same doctrine in the system of International Jurisprudence.

First, as to Private Law. In all systems of private jurisprudence, the lapse of time has a considerable bearing upon the question of property.(b) There is, according to all such systems, a period when a de facto become a de jure ownership, when possession becomes property. The nature of man, the reason of the thing, the very existence of society, demand that such should be the case. The Roman Law does but give expression to this paramount necessity in the maxim, *« Vetustas [*266] quæ semper pro lege tenetur."(c) The doctrine of Usucapio exhibits the first trace of this mode of acquisition in Roman Jurisprudence. (d) According to this doctrine, the possessor justo titulo et bonâ

(m) Wheaton, Elém. t. i. pp. 167, 168.

(a) Grotius, 1. ii. c. iv.

Puffendorf, Jus Nat. et Gent. 1. iv. c. xii.

Wolff, Jus Nat. p. iii. c. vii.

Vattel, 1. i. c. xvi. s. 199., 1. ii. c. xi. ss. 140, 151.

(b) Grotius indeed says that usucapio is the creature of the Civil Law, because nothing is done by time, though everything is done in time; but this seems an unworthy subtlety, and is inconsistent with other passages in his work.

"Le Temps qui renferme en soi l'idée de la durée, de la répétition, et de la succession des phénomènes, un des agents de modification, de destruction et de génération pour les choses physiques, restera-t-il sans influence sur la modification, sur la destruction et sur la génération des droits."-Domaine Internat., par E. Ortolan, p. 98.

(c) Dig., de aquâ et acquæ pluviæ arcendæ, xxxix. 3. 2.: see also Dig. de loc. et itin. publ. xliii. 7. 3.

Dig., de aquâ quotidianâ et æstivâ, 43. 20. 3. 4.: "Ductus aquæ cujus origo memoriam excessit, jure constituti loco habetur."

(d) Which the Germans call Ersitzung. In the XII Tables it bore the name of ususauctoritas, i. e. usus et auctoritas.