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States possesses in full ownership Chesapeake and Delaware bays. Great Britain has almost forgotten her pretensions to sovereignty over what she called the King's Chambers, that is to say, portions of open sea cut off by drawing imaginary lines from headland to headland along her coast; but they have never been formally withdrawn. And by the Fishery Convention of 1839 already alluded to, exceptions were allowed to the ten-mile rule laid down in it. The utmost we can venture to say is that there is a tendency among maritime states to adopt this rule, and probably it will in time become the law of the civilized world. It is, however, universally conceded that when a bay or estuary is territorial water, the marine league is to be measured from the imaginary line across its entrance.
Lastly, a state possesses the islets fringing its coast. A hold on them is essential to its peace and safety. The question was raised in 1805 in the case of the Anna, which was a ship of somewhat doubtful character, captured when flying the American flag by a British privateer near the mouth of the Mississippi. The seizure was made more than three miles from firm ground, but within a league of a chain of mud islets which fringed the coast and formed “a sort of portico to the mainland.” The United States was neutral in the war between Great Britain and Spain, and its minister in London claimed the ship in the British Prize Court, on the ground that the capture was made within American territorial waters. The judgment of Lord Stowell sustained this contention and ordered the release of the ship. He held that the islands, though not firm enough to be habitable, must be regarded as part of the territory, since they were formed by alluvium 4 from the mainland, and their possession was necessary for the command of the river. “ If they do not belong to the United States of America, any other
1 Ortolan, Diplomatie de la Mer, II., VIII., 163; C. F. de Martens, Précis, $ 42; Kent, Commentary on International Law (Abdy's ed.), 113, 114.
2 Walker, Science of International Law, 170, notes 3 and 4.
power may occupy them, they might be embanked and fortified. What a thorn would this be in the side of America!” There can be no doubt of the justice of Lord Stowell's decision, and the rule which resulted from it has received general recognition.
Having seen of what a state's territory consists, we have now to discuss how it may be acquired. International Law recognizes as valid a number of titles. will describe them one by one, and set forth quiring territory.
(1) Occupation. in order the rules applicable to each. The first and perhaps the most important is
Legal modes of ac
Title by occupation.
This title applies only to territory not previously held by a civilized state. We have already seen 1 that it was introduced into International Law by the jurists of the sixteenth and seventeenth centuries in order to settle the disputes which arose among the maritime nations of Europe with regard to their respective possessions in the New World. At first they seemed disposed to hold that mere discovery was sufficient to create a good and complete title. Thus Spain claimed the whole coast of America northward from Florida, because in 1513 Ponce de Leon was the first European to land there. But the English claimed the same coast on account of the discovery of Cape Breton or Newfoundland by John Cabot in 1497, and the exploration of the shore, from Nova Scotia to Cape Hatteras, by his son Sebastian in 1498. The exaggerated importance attached to first discovery did not long continue. The doctrine that it must be followed by some formal act of taking possession, some expression of the will of the state, as Vattel put it, soon arose. Now and again in international controversies states laid stress upon it in order to support claims otherwise inadmissible; but it has been gradually deposed from the position it once occupied ; and in modern times few, if any, authorities would be prepared to say that a good title to territory could be based by a state upon the bare fact that its navigators were the first to find the lands in question. It is true that the controversies of the seventeenth and eighteenth centuries, between the colonizing nations of Europe as to the extent of their possessions on the American continent, were largely settled by the sword; and where its aid was not invoked boundaries were determined rather by compromise, or the political exigencies of the moment, than by strict legal considerations. But, nevertheless, statesmen and publicists endeavored to find reasonable ground for national claims, whether they were referred to the battle-field or the councilchamber for settlement; and it is possible to deduce some approximation to a consistent body of doctrine from the history of the controversies and diplomatic transactions concerned with the disputes under consideration. The process of portioning out the American continent among civilized states was consummated in the middle of the nineteenth century when the Treaty of 1846 divided the great Northwest between the United States and the British Empire. 1 From that time onwards, if not before, every foot of ground in the New World was part of the territory of some civilized country, and no power was free to obtain fresh possessions therein by occupation. It seemed, therefore, as if the legal questions connected with that method of gaining an international title to territory had no more than an historic interest. They were superseded by new and pressing controversies far greater in immediate importance, and the space given to them in the works of publicists grew less and less. But the last few years have seen a great revival of interest in them, owing to that modern "scramble for Africa” which has taken the place of the old “scramble for America.” The discoveries of Livingstone, Speke, Grant, Burton, Stanley, and others have shown that the interior of the Dark Continent, instead of being a desert, is a vast and fertile territory, diversified in climate, elevation and productions, full of great lakes and pierced by mighty rivers, the most important of which are navigable for thousands of miles, or can be made so with little trouble and expense. The earth-hunger of the Old World has been aroused. The cupidity of some and the benevolence of others have led to countless expeditions of conquest, conversion and civilization. The absence of anything like wars of extermination waged against the natives, or wars of conquest waged by the colonizing powers against each other's settlers, point, in spite of much that is mean and sordid and cruel, to an improvement in international morality during the time that has elapsed since a partition of America was attempted by the early discoverers. Argument and compromise played but a little part in those proceedings; they have bulked large in the negotiations of the last few years with regard to Africa. The principles of occupation have been restudied and applied anew. Jurists have thrown into legal form the best opinions and most accepted doctrines of former ages. Their task has been one of no small magnitude, and it is not to be wondered at that their inquiries and reasonings have not always resulted in exact agreement among themselves. But the points of difference have been unimportant in comparison with the points of similarity; and each succeeding writer of repute has been able to add something to the work of digesting a mass of controversial arguments into a body of consistent law. We will endeavor to state as clearly as possible what may be deemed the modern doctrine of occupation, warning our readers, however, that in some of its parts it must be taken to represent tendencies towards law rather than rules of universal acceptance.
1 See § 39.
2 Droit des Gens, I., $ 207.
Occupation as a means of acquiring sovereignty and dominion applies only to such territories as are in the eye of
International Law res nullius. That is to say, Occupation applies only to res nullius and
they must be no part of the possessions of any consists of (a)
civilized state. It is not necessary that they Annexation plus (6) Settlement.
should be uninhabited. Tracts roamed over by savage tribes have been again and again appropriated, sometimes after some kind of compensation has been given to the natives for the intrusion of the white man upon them, sometimes with no regard for their claims and wishes. And even the attainment by the original inhabitants of some degree of civilization and political coherence has not sufficed to bar the acquisition of their territory by occupancy. All territory not in the possession of states who are members of the family of nations and subjects of International Law must be considered as technically res nullius and therefore open to occupation. The rights of the natives are moral, not legal. International Law knows nothing of them, though International Morality demands that they be treated with consideration.
Occupation is not effected by discovery. The world has become so well known that very little land remains to be discovered in modern times, and there is often great doubt and dispute with regard to the exploits of earlier navigators. The utmost that can be said for discovery to-day is that, if a navigator of one state came home with the news that he had found an island or district hitherto unknown, other states would be bound by the comity of nations to wait a reasonable time before sending out expeditions in order to annex it. We may add that though discovery alone does not give a title, it strengthens a title based on occupancy. The best modern practice, and the views of the most acute
Digest, XLI., i., 3. 2 Wharton, International Law of the U. S., I., 7; Maine, International Lara 66, 67.