No provision is made for devise or succession after death, inasmuch as the devise of a crown cannot be deemed to destroy the identity of the State; and the power of a monarch to alienate any part of the national territory by will should not be admitted.

Acquisition by occupation.

38. Territory can be acquired by occupation, in the following cases only:

1. When it was previously unoccupied by any other han a savage nation;

2. When the nation which previously occupied it has, without ceding it, renounced the sovereignty which it exercised over it, either expressly, or by abandoning the territory; or,

3. When the inhabitants of the territory overthrow their government and freely join themselves to the occupying nation.

Extent of occupancy.

39. Occupancy of any part of an island uninhabited or inhabited only by savages, is presumed to be an occupancy of the whole.

The same.

40. A nation is presumed to occupy all territory within the limits over which it maintains an effective control; and such presumption is conclusive, unless it appears that some other nation actually occupies a portion of such territory.

Accretion.

41. Land formed in the sea by accretion belongs to the nation whose territory is nearest.

1 Phill. Int. Law, 257; The Anna, 5 Robinson's Adm. Rep., 332; Bluntschli, § 295, note.

The same.

42. When land is formed on the shore from natural causes and by imperceptible degrees, the boundary between the nation owning it and the nations owning other parts of the shore is modified so as to conform to the change in the shore.

This and the two following articles are suggested by the Code Napoleon, Liv. II., Tit. II., Art. 556–559; and Civil Code reported for New York, SS 443-448.

The same.

43. When land is formed on the shore from artificial causes or by perceptible degrees, the boundary between the adjoining nations is not changed thereby.

Reclaiming land washed away.

44. If a considerable and distinguishable part of the shore is carried away by the water, to a place within the boundaries of another nation, the nation owning it while attached to the shore may reclaim it within one year, if it can be restored to the territory of the nation so claiming it; but until it is so restored it must be deemed to be part of the territory within which it is situated.

Ownership of islands.

45. An island, formed from natural causes in any water other than the sea, belongs to the nation within whose boundary it is formed; or, if it is formed upon the boundary of two or more nations, each nation owns so much of the island as lies within its original boundary.

Compare Bluntschli, § 295.

Changes of stream.

46. If a stream which constitutes the boundary between two or more nations forms a new course, abandoning its ancient bed, from natural causes, and by imperceptible degrees, the boundary follows the center of the stream, as defined in article 30; but in other cases the boundary remains in the center of the ancient bed.

1 Phill. Int. Law, 258, 259; Bluntschli, § 299.

Transfer or cession.

47. Territory can be acquired by transfer or cession, upon the agreement of the nations whose sovereignty is affected by the transaction.

Acquisition by transfer or cession is imperfect, until possession is taken by the nation receiving the transfer.

Compare Bluntschli, §§ 282, 296. He adds, that to make a cession valid, the inhabitants of the ceded territory must recognize the cession, and have the enjoyment of their political rights under the nation receiving the transfer.

Conquest.

48. Conquest includes any mode of obtaining possession of territory against the will of the power by which it was previously occupied.

Acquisition by conquest becomes complete by the continuance of peaceful possession.

See Bluntschli, § 290.

CHAPTER V.

PROPERTY AND DOMAIN.

ARTICLE 49. Capacity to have property.

50. Eminent domain.

51. Internal domain.

52. Prescription.

Capacity to have property.

49. Subject to its constitution and laws,' a nation has capacity to acquire, hold and dispose of:

1. Property2 not within the territorial limits of any other nation; and,

2. With the consent of any other nation, property within the territorial limits of such other nation.

1 The capacity to acquire real property may be limited or regulated by the organic law.

The property of a nation is of two kinds :

1st. Public property or public domain; that is, that kind which the government holds as a mere trustee for the use of the public; such as navigable rivers, highways, &c.; and,

2nd. Private domain, or domain of the State; that is, those things in which the nation has the same absolute property as an individual would have in like cases. Halleck, p. 123.

Eminent domain.

50. The power of a nation, by virtue of eminent domain, to take, or suspend the use of,' property within its territorial limits, for the public use, safety or welfare, extends to the property of foreign persons, states and nations.

Adequate compensation' must be made therefor, and, except in cases of immediate necessity, at the time of the interference.

1 By several treaties, the property of a foreigner cannot be taken, or his use thereof impeded or impaired by public authority, without adequate compensation for the interference.

Treaty between France and

Treaty between the United States and

Bolivia, May 13, 1858, Art. III.,

Nicaragua, June 21, 1867, IX., 15 Id., (Tr.,) 59.

The detention of a vessel in port by the President of the United States, under the Act of Congress, April 30, 1818, (3 U. S. Stat. at L., 447,) was held not a taking and use of private property for public purposes, within the meaning of the Constitution; but an arrest by due process of law. Court of Claims, 1866, Graham v. United States, 2 Court of Claims Rep., Nott & H., 327. Some of the treaties expressly require compensation in case of embargo, &c.; and the article, above, is accordingly extended to interferences with the use of property.

2 Articles condemned for violation of law, or because of adaptation to illegal uses,-e. g., burglars' tools, obscene publications, &c., are not to be regarded as property within such a rule as this.

Internal domain.

51. As against other nations, a nation is presumed to be the owner of all public, and all unappropriated, property within its limits,' and has a right to forbid any other nation from owning or holding any property within its territorial limits, except as otherwise provided in this Code,' or by special compact.

1 See Fiore, Nouv. Dr. Int., vol. 1, Lib. 2, chs. 1,2; Lawrence's Wheaton, p. 303, § 3.

2 See Chapter VI., on NAVIGATION.

Prescription.

52. The uninterrupted possession of territory or other property for fifty years by a nation, excludes the claim of every other nation.

Prescription is applicable to the title to national property. Rhode Island . Massachusetts, 4 Howard's U. S. Sup. Ct. Rep., 639; Lawrence's Wheaton, p. 303, § 4.

Vattel suggests the propriety of fixing by agreement of nations a definite rule as to the number of years necessary to found a prescription. Law of Nations, B. 2, c. 11, § 151.

Phillimore questions the expediency and the possibility of so doing. Int. Law, Vol. 1, p. 272, note r.

Compare Dana's Wheaton, § 164, note 101.