CHAPTER IV. RIGHTS OF PROPERTY. § 1. National THE exclusive right of every independent state to its territory and other property is founded upon the title originally proprieacquired by occupancy, and subsequently confirmed by the tary rights. presumption arising from the lapse of time, or by treaties and other compacts with foreign states. § 2. The things belonging to the nation include its public property or domain, and those things belonging to private indi- Property viduals or bodies corporate within the territory. of the state. Eminent This national proprietary right, so far as it excludes that § 3. of other nations, is absolute; but in respect to the members of domain. the state it is paramount only, and forms what is called the eminent domain.1 The writers on natural law have questioned how far that § 4. Prescrippeculiar species of presumption arising from the lapse of time tion. which is called prescription is justly applicable as between nation and nation; but 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 nature 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 1 Vattel, Droit des Gens, liv. i. ch. 20, §§ 235, 244. Rutherforth's Inst. of Natural Law, vol. ii. ch. 9, § 6. § 5. Conquest and discovery confirmed by compact and the lapse of time. 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.2 The title of almost all the nations of Europe to the territory now possessed by them in that quarter of the world was originally derived from conquest, which has been subsequently confirmed by international compacts to which all the European states have successively become parties. Their claim 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 colonization, and has since been confirmed in the same manner by positive compact. Independently of these sources of title, the general consent of mankind has established the principle that long and uninterrupted possession by one nation excludes the claim of every other. Whether this general consent be considered as an implied contract or as positive law, all nations are equally bound by it, since all are parties to it; since none can safely disregard it without impugning its own title to its possessions; and since it is founded upon mutual utility, and tends to promote the general welfare of mankind. The Spaniards and Portuguese took the lead among the nations of Europe in the splendid maritime discoveries in the East and the West, during the fifteenth and sixteenth centuries. According to the European ideas of that age, the heathen nations of the other quarters of the globe were the lawful spoil and prey of their civilized conquerors, and as between the Christian powers themselves, the Sovereign Pontiff was the supreme arbiter of conflicting claims. Hence the famous bull issued by Pope Alexander VI. in 1493, by which he granted to the united crowns of Castille and Arra 2 Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 4. Puffendorf, Jus Naturæ et Gentium, lib. iv. cap. 12. Vattel, Droit des Gens, tom. i. liv. ii. ch. 11. Rutherforth's Inst. of Natural Law, vol. i. ch. 8, vol. ii. ch. 9, §§ 3, 6. gon all lands discovered, and to be discovered, beyond a line drawn from pole to pole, one hundred leagues west from the Azores, or Western Islands, under which Spain has since claimed to exclude all other European nations from the possession and use, not only of the lands, but of the seas, in the New World west of that line. Independent of this papal grant, the right of prior discovery was the foundation upon which the different European nations, by whom conquests and settlements were successively made on the American continent, rested their respective claims to appropriate its territory to the exclusive use of each nation. Even Spain did not found her pretensions solely on the papal grant. Portugal asserted a title derived from discovery and conquest to a portion of South America, taking care to keep to the castward of the line traced by the Pope, by which the globe seemed to be divided between these two great monarchies. On the other hand, Great Britain, France, and Holland, disregarded the pretended authority of the papal see, and pushed their discoveries, conquests, and settlements, both in the East and the West Indies, until conflicting with the paramount claims of Spain and Portugal, they produced bloody and destructive wars between the different maritime powers of Europe. But there was one thing in which they all agreed, that of almost entirely disregarding the right of the native inhabitants of these regions. Thus the bull of Pope Alexander VI. reserved from the grant to Spain, all lands which had been previously occupied by any other Christian nation: and the patent granted by Henry VII. of England to John Cabot and his sons authorized 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." It thus became a maxim of policy Dispute between Great Britain and Spain relating to Nootka Sound. and of law that the right of the native Indians was subordinate to that of the first Christian discoverer, whose paramount claim excluded that of every other civilized nation, and gradually extinguished that of the natives. In the various wars, treaties, and negotiations, to which the conflicting pretensions of the different states of Christendom to territory on the American continent have given rise, the primitive title of the Indians has been entirely overlooked, or left to be disposed of by the states within whose limits they happened to fall by the stipulations of the treaties between the different European powers. Their title has thus been almost entirely extinguished by force of arms, or by voluntary compact, as the progress of cultivation gradually compelled the savage tenant of the forest to yield to the superior power and skill of his civilized invader. In the dispute which took place in 1790, between Great Britain and Spain, relative to Nootka Sound, the latter claimed all the north-western coast of America as far north as Prince William's Sound, in latitude 61°, upon the ground of prior discovery and long possession, confirmed by the eighth article of the treaty of Utrecht, referring to the state of possession in the time of his Catholic Majesty Charles II. This claim was contested by the British government, upon the principle that the earth is the common inheritance of mankind, of which each individual and each nation has a right to appropriate a share by occupancy and cultivation. This dispute was terminated by a convention between the two powers, stipulating that their respective subjects should not be disturbed in their navigation and fisheries in the Pacific Ocean or the South Seas, or in landing on the coasts of those seas, not already occupied, for the purpose of carrying on their commerce with the natives of the country, or of making setttlements there, subject to the following provisions: 1. That the British navigation and fishery should not be made the pretext for illicit trade with the Spanish settlements, and that British subjects should not navigate or fish within the space of ten marine leagues from any part of the coasts already occupied by Spain. 2. That with respect to the eastern and western coasts of South America and the adjacent islands, no settlement should be formed thereafter by the respective subjects in such parts of those coasts as are situated to the south of those parts of the same coasts, and of the adjacent islands already occupied by Spain; provided that the respective subjects should retain the liberty of landing on the coasts and islands so situated, for the purposes of their fishery, and of erecting huts and other temporary buildings, for those purposes only.3 tion be tween the States and the North America. By a ukase of the emperor Alexander of Russia, of the Conven4-16th September, 1821, an exclusive territorial right on the north-west coast of America was asserted as belonging to the United Russian empire, from Behring's Straits to the 51st degree of Russia renorth latitude, and in the Aleutian islands, on the east coast specting of Siberia, and the Kurile islands from the same straits to the western South Cape in the island of Ooroop, in 45°. 51' north latitude. Coast of The navigation and fishery of all other nations was prohibited in the islands, ports, and gulfs within the above limits; and every foreign vessel was forbidden to touch at any of the Russian establishments above enumerated, or even to approach them within a less distance than 100 Italian miles, under penalty of confiscation of the cargo. The proprietary rights of Russia to the extent of the north-west coast of America specified in this decree, were rested upon the three bases said to be required by the general law of nations and immemorial usage:—that is, upon the title of first discovery; upon the title of first occupation; and, in the last place, upon that which results from a peaceable and uncontested possession of more than half a century. It was added that the extent of sea, of which the Russian possessions on the continents of Asia and America form the limits, comprehended all the conditions which were ordinarily attached to shut seas (mers fermées ;) and the Russian government might consequently deem itself authorized to exercise upon this sea the right of sovereignty, and especially that of entirely interdicting the entrance of foreigners. But 3 Annual Register for 1790, (State Papers,) pp. 285–305; 1791, pp. 208-214, 222-227. |