Free gifts of territory are not altogether unknown, though as a rule the intercourse of states is not conducted on principles of lavish generosity. Yet a government that desired for special purposes to retain another's good-will has been known to make a gift of territory by treaty of cession. Thus in 1762 France ceded to Spain the colony of Louisiana, in order to indemnify her for the loss of Florida, which had been transferred to England by the Treaty of Paris;1 and in 1850 Great Britain ceded to the United States a portion of the Horseshoe Reef in Lake Erie, in order that the government of Washington might erect a lighthouse thereon.2 But in matters of transfer of territory the gift is far more often forced than free. A state beaten in a war is sometimes obliged to make over a province or a colony to the victor as one of the conditions of peace. Indeed, most cessions are the results of warfare and come under the head of forced gifts. One of the most recent instances is to be found in the cession of Alsace and part of Lorraine by France to Germany. This was done by the Treaty of Frankfort of 1871,3 and was one of the results of the defeat and downfall of France in the war of that and the preceding year. The last ground of cession we will mention is Exchange. It was common enough in times when territories were cut and carved in order to make provision for the scions of ruling families, but the growth of the principle that populations should have a voice in the settlement of their political destiny has made it comparatively rare. We can, however, find one instance in recent European history. By the Treaty of Berlin of 1878 Roumania ceded to Russia that portion of Bessarabia given to it at Russia's expense in the Treaty of Paris of 1856, and received in exchange the Dobroutcha, which was taken from Turkey.1 1 Wheaton, History of the Law of Nations, Pt. II., § 3; C. de Martens, Recueil, I., 29-36; Phillimore, Commentaries, Pt. III., Ch. xiv. 2 Treaties of the United States, p. 444. Hertslet, Map of Europe by Treaty, III., 1955. Holland, European Concert in the Eastern Question, p. 302. § 98. Our next task is to explain the nature of Legal modes of (3) Conquest. Title by conquest. It is necessary to begin by distinguishing conquest in the legal sense from conquest in the military sense. The latter takes place when the agents of one belligerent acquiring territory. state drive the agents of the other out of a territory and hold it by military force. The former is brought about when the victorious state exercises continuously all the powers of sovereignty over a territory conquered in a military sense, and signifies by some formal act, such as a diplomatic circular or a proclamation of annexation, its intention of adding that territory to its dominions. The question of what constitutes a valid conquest in the legal sense was fully discussed after the downfall of Napoleon in connection with certain annexations of his in Germany and Italy. The most famous of these cases was that of Hesse Cassel; and it seems to be generally admitted in respect of it that the French Emperor had acquired the Electorate by conquest so as to give international validity to acts done in the capacity of its sovereign. His troops had overrun it in 1806, and he had acted as supreme ruler for some time, and had then added the territory to the Kingdom of Westphalia, which he created for his brother Jerome, and which was recognized by many powers and lasted till 1813.1 Title by conquest differs from title by cession in that the transfer of the territory is not effected by treaty, and from title by prescription in that there is a definite act or series of acts, out of which the title arises. These acts are successful military operations; but if a province conquered in a war is afterwards made over to the victorious power by treaty, it is acquired by cession. Title by conquest arises only when no formal international 1 Phillimore, Commentaries, Pt. XII., Ch. vi. document transfers the territory to its new possessor. Title by prescription arises only when no fact but long-continued possession can be alleged as a foundation for the existence of sovereign rights. § 99. In spite of denials of the validity of Title by prescription Legal modes of (4) Prescription. by some writers,1 who lay themselves open to the imputation of mistaking their own theories of what is just and fitting for the public law of the civilized world, there can be no doubt that long-continued possession of acquiring territory. territory gives a good title to it in International Law when no other ground can be clearly shown, and even in cases where possession was originally acquired by illegal and wrongful acts. It is difficult to see what other title the older states of Europe could put forward to the lands on which their people have been settled from time immemorial. The same reasons which justify, and even compel, the recognition of prescription as a valid ground of title to private property by the municipal law of all civilized peoples, support its admission into International Law. It is as necessary to put a limit to disputes about national ownership as it is to close legal controversies between individuals. The only distinction between the two cases arises from the absence of a common superior over states. There being no central authority to make and enforce rules, the length of time requisite to give a title by prescription cannot be exactly defined, as it is in municipal law. But nevertheless the principle is undoubted, and a power which should refuse to recognize it would soon be put under ban as a wanton disturber of the general peace. 1 e.g. G. F. de Martens, Précis, §§ 70, 71. § 100. It now remains for us to consider Title by accretion. This applies only to water-boundaries; and the rules which define and limit it are taken with little variation from Roman Law.1 When the action of water adds to the Legal modes of acquiring territory. land, or when islands are formed off the coast (5) Accretion. of a state, whether by alluvium or from any other cause, they are regarded as portions of the territory. When a waterway is the boundary between two states, islands formed on either side of the middle of the channel belong to the state which owns that side. If they arise in the central channel itself, they are divided between the two states by a line drawn across or along them in continuation of the line drawn down the middle of the channel. But if a convulsion of nature alters altogether the bed of a boundary river or lake, the line of demarkation does not follow the new bed of the stream, but runs along the bottom of the old deserted channel. There are provisions for exceptions to these rules when, instead of the river itself being the boundary, a fixed line is drawn which happens to touch the river and run along it; but the whole subject is so far removed from the practical everyday life of states, and cases in point are so seldom likely to occur, that it does not seem desirable to occupy space by pursuing the matter into further detail. A state may exercise power over territory as (a) a part of its dominions. § 101. We now pass on to consider the different degrees of power exercised by states over territory which is to a greater or less extent under their authority or influence. It is necessary to deal with this matter because, in quite recent times some of the leading maritime and colonizing states have begun to reserve for themselves 1 Justinian, Institutes, II., i., 20-24, and Digest, XLI., i., 7, 29, 65. territories over which they do not for the present exercise full rights of sovereignty; and in consequence, questions have arisen as to the exact nature and limits of the powers possessed by them over such territories. The desire to partition Africa, and the transactions that have taken place in order to secure its peaceful gratification, have forced these questions to the front, if they have not created the problems that are now awaiting solution with regard to them. Modern International Law was familiar with sovereignty, and it knew of suzerainty, though rather as a relation between governments than as a power over territory. The few protectorates of which it was cognizant afforded little scope for the development of international difficulties. Now, however, all is changed. Within the last few years protectorates have sprung up in Africa with the rapidity of tropical vegetation, and questions connected with the responsibilities and mutual duties of the protecting powers have sprung up with them. The creation of spheres of influence has gone on apace; but the name and the thing signified by it are so new, that jurists have not yet come to an agreement as to its exact meaning. In fact, a new chapter is being added to International Law; and in the remarks that follow we can do little more than indicate the direction taken by opinion and practice with regard to the matters in question. There can be no doubt or difficulty in respect of the territory over which a state exercises authority as a part of its dominions. Whether such territory has been possessed from time immemorial or acquired but yesterday, whether it is full of evidences of the most advanced civilization or covered by forest and wilderness, whether the bulk of its people are cultivated and polite or rude and barbarous, the powers exercised over it, and all who dwell upon it, are those of full sovereignty. The state which owns it, controls entirely and exclusively both its internal and its external affairs, except in those few cases where, as we have seen before,1 some of the powers of 1 See §§ 48-50 and 71-73. M |