At the International American Conference, in Washington, the delegates of the Argentine Republic and Brazil offered, January 15, 1890, a series of resolutions, the eighth article of which read as follows: "Acts of conquest, whether the object or the consequence of the war, shall be considered to be in violation of the public law of America." (Minutes of the International American Conference, 107, 108.)

The resolutions were referred to the committee on general welfare, which, April 18, 1890, recommended the adoption of the following declarations: "1. That the principle of conquest shall never hereafter be recognized as admissible under American public law.

"2. That all cessions of territory made subsequent to the present declarations shall be absolutely void if made under threats of war or the presence of an armed force.

"3. Any nation from which such cessions shall have been exacted may always demand that the question of the validity of the cessions so made shall be submitted to arbitration.

"4. Any renunciation of the right to have recourse to arbitration shall be null and void whatever the time, circumstances, and conditions under which such renunciation shall have been made."

These declarations were subscribed by three members of the committee respectively representing the Argentine Republic, Bolivia, and Venezuela. Three other members representing Colombia, Brazil, and Guatemala stated that they adopted only the first of the declarations.

Mr. Varas, a delegate from Chile, stated that the delegation from that country would abstain from voting or taking part in the debate on the resolutions. Mr. Henderson, a delegate from the United States, offered, as expressing the views of the United States delegation, the following resolution: “Whereas, in the opinion of this conference, wars waged in the spirit of aggression or for the purpose of conquest should receive the condemnation of the civilized world: Therefore

“Resolved, That if any one of the nations signing the treaty of arbitration proposed by the conference, shall wrongfully and in disregard of the provisions of said treaty, prosecute war against another party thereto, such nations shall have no right to seize or hold property by way of conquest from its adversary."

After a long discussion, in which the delegate from Peru supported the recommendation of the committee as a whole, the report was adopted by a majority of 15 to 1. The delegations voting affirmatively were Hayti, Nicaragua, Peru, Guatemala, Colombia, Argentine Republic, Costa Rica, Paraguay, Brazil, Honduras, Mexico, Bolivia, Venezuela, Salvador, and Ecuador. The United States voted in the negative, while Chile abstained from voting.

Further discussion then took place, after which a recess was taken in order that an agreement might be arrived at which would secure the vote of the United States delegation. On the session being resumed, Mr. Blaine presented the following plan:

“1. That the principle of conquest shall not, during the continuance of the treaty of arbitration, be recognized as admissible under American public law.

"2. That all cessions of territory made during the continuance of the treaty of arbitration shall be void if made under threats of war or the presence of an armed force.

"3. Any nation from which such cessions shall be exacted may demand that the validity of the cessions so made shall be submitted to arbitration. "4. Any renunciation of the right to arbitration made under the conditions named in the second section shall be null and void.”

The conference unanimously agreed to accept this as a substitute for the former report, Chile abstaining from voting. (Minutes of the International American Conference (1889–90), 798-806. The plan of a treaty of arbitration adopted by the conference never became operative.)

Opinions of publicists.

5. PRESCRIPTION.

$ 88.

Grotius, referring to the theory of Vasquius, that the doctrine of prescription was inapplicable as between nations, says: "Yet, if we admit this, there seems to follow this most unfortunate conclusion, that controversies concerning kingdoms and the boundaries of kingdoms, are never extinguished by any lapse of time; which not only tends to disturb the minds of many and perpetuate wars, but is also repugnant to the common sense of mankind.”

Grotius, De Jure Belli ac Pacis, Lib. II. Cap. IV. § 1.

The original text reads: "Atque id si admittimus, sequi videtur maximum
incommodum, ut controversie de regnis regnorumque finibus nullo
unquam tempore extinguantur: quod non tantum ad perturbandos mul-
torum animos et bella serenda pertinet, sed et communi gentium sensui
repugnat."

Prescription was a title known to the Roman Law. (Institutes of Justinian,
Lib. II. Tit. VI.)

"And perhaps we may say that this is not merely a matter of presumption, but that this law is established by the voluntary law of nations, that a possession beyond memory, not interrupted, nor disturbed by appealing to an arbitrator, absolutely transfers dominion. It is credible that nations have agreed on this, since such a rule is most conducive to the public peace."

Grotius, De Jure Belli ac l'acis, Lib. II. Cap. IV. § 9.

The original text reads: "Ac forte non improbabiliter dici potest non esse
hane rem in sola presumptione positam, sed jure gentium voluntario
inductam hanc legem, ut possessio memoriam excedens, non interrupta,
nec provocatione et arbitrum interpellata, omnino dominium transferret.
Credibile est enim in id consensisse gentes, cum ad pacem communem id
vel maxime interesset."

That the doctrine of international prescription is sometimes discussed by
analogy to the rule of the common law in matters of private litigation, as
if it depended upon presumption as to a prior grant, may be seen in the
following passage: "Now, mere lapse of time, independent of legislation or
positive agreement, cannot of itself either give or destroy title.
It gives
title only so far as it creates a presumption, equivalent to proof, that a title
exists, derived from higher sources: it destroys title only because it creates
a like presumption that, whatever the title may have been, it has been
transferred or abandoned. Thus it is merely evidence and nothing more.
It creates a presumption equivalent to full proof. But it differs from proof
in this, that proof is conclusive and final, whereas presumption is conclusive
only until it is met by counter-proof, or a stronger counter-presumption."
(Mr. Upshur, Sec. of State, to Mr. Everett, min. to England, Oct. 9, 1843,
MS. Inst. Great Britain, XV. 148.)

"The tranquillity of the people, the safety of states, the happiness of the human race, do not allow that the possessions, empire, and other rights of nations should remain uncertain, subject to dispute and ever ready to occasion bloody wars. Between nations, therefore,

it becomes necessary to admit prescription founded on length of time as a valid and incontestable title."

Vattel, Law of Nations, Lib. II. Cap. XI, § 149.

"The solid rock of prescription,-the soundest, the most general, and the most recognized title between man and man that is known in municipal or in public jurisprudence,—a title in which not arbitrary institutions, but the eternal order of things, gives judgment; a title which is not the creature, but the master, of positive law; a title which, though not fixed in terms, is rooted in its principle in the law of nature itself, and is indeed the original ground of all known property: for all property in soil will always be traced back to that source, and will rest there."

Edmund Burke, Works (Little, Brown & Co., 1867), VI. 412.

"Lapse of time, in the case equally of nations as of individuals, robs the parties of the means of proof, so that if a bona fide possession were allowed to be questioned by those who have acquiesced for a long time in its enjoyment by the possessors, length of possession, instead of strengthening, would weaken territorial title. . . . Thus, in regard to the territories of the Hudson's Bay Company, it was alleged in the negotiations preliminary to the treaty of Utrecht, that the French had acquiesced in the settlement of the Bay of Hudson by the company incorporated by Charles II. in 1663; since M. Fontenac, the Governor of Canada, in his correspondence with Mr. Baily, who was Governor of the Factories in 1637, never complained, 'for several years, of any pretended injury done to the French by the said company's settling a trade and building of forts at the bottom of the bay.""

Twiss, The Oregon Territory, 125, citing a "General Collection of Treaties" (London, 1710-’33), I. 446.

"There unquestionably is a lapse of time after which one state is entitled to exclude every other from property of which it is in actual possession. In other words, there is an International Prescription, whether it be called Immemorial Possession, or by any other name. The peace of the world, the highest and best interests of humanity, the fulfillment of the ends for which states exist, require that this doctrine be firmly incorporated in the Code of International Law.”

Phillimore, Int. Law, I. 303, § CCLVIII.

"The writers on natural law have questioned how far that peculiar species of presumption, arising from the lapse of time, 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 is 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."

66

Wheaton, Elements, Dana's ed. 239.

Dana, in a note to this passage, observes that Phillimore classes Klüber and Martens as denying to prescription a place in international law, and Grotius, Heineccius, Wolff, Mably, Vattel, Bynkerskoek, Rutherforth, Wheaton, and Burke as maintaining it.

Title by prescription arises out of a long-continued possession, where no original source of proprietary right can be shown to exist, or where, possession in the first instance being wrongful, the legitimate proprietor has neglected to assert his right, or has been unable to do so."

Hall, Int. Law (4th ed.), 123, sec. 36.

For

"No human transactions are unaffected by time. Its influence is seen on all things subject to change. Judicial decisions. the security of rights, whether of states or individuals, long possession under a claim of right is protected. And there is no controversy in which this principle may be involved with greater justice and propriety than in a case of disputed boundary."

Rhode Island v. Massachusetts (1846), 4 Howard, 591,639.
See, also, Handly's Lessee v. Anthony (1820), 5 Wheat. 374.

"But above all the evidence of former transactions and of ancient witnesses, and of geological speculations, there are some uncontroverted facts in the case which lead our judgment irresistibly to the conclusion in favor of the claim of Kentucky. It was over seventy years after Indiana became a State before this suit was commenced, and during all this period she never asserted any claim by legal proceedings to the tract in question. It was not shown that an officer of hers executed any process, civil or criminal, within it, or that a citizen residing upon it was a voter at her polls, or a juror in her courts, or that a deed to any of its lands is to be found on her records, or that any taxes were collected from residents upon it for her revenues. It is a principle of public law universally recognized, that long acquiescence in the possession of territory and in the exercise of dominion and sovereignty over it, is conclusive of the nation's title and rightful authority."

Indiana v. Kentucky (1890), 136 U. S. 479, citing Rhode Island v. Massachusetts, and the passages from Vattel and Wheaton, supra.

The line between Indiana and Kentucky was run in conformity with the foregoing decision, which assigned Green River Island, the territory in dispute, to Kentucky. (Indiana v, Kentucky (1895), 159 U. S. 275; (1896), 163 U. S. 520; (1897), 167 U. S. 270.)

Counsel for Indiana urged, in opposition to the claim of prescription, the maxim
nullum tempus occurrit regi; but this maxim of the common law, governing
the relations of sovereign and subject, is manifestly inapplicable to the
relations between independent states. Nor is it always maintained in favor
of the sovereign as against his subject. "Though lapse of time does not
of itself furnish a conclusive bar to the title of the sovereign, agreeably
to the maxim, nullum tempus occurrit regi; yet if the adverse claim could
have had a legal commencement, juries are advised or instructed to pre-
sume such commencement, after many years of uninterrupted possession
or enjoyment." (United States v. Chavez (1899), 175 U. S. 509, 522. See
Peabody v. United States, 175 U. S. 546; Chavez v. United States, 175
U.S. 552.)

See, also, the opinion of Little, comr., in Williams r. Venezuela, Moore, Int.
Arbitrations, IV. 4181-4199.

The doctrine of prescription is impliedly recognized in the various treaty stipu-
lations which have been made for the joint occupation of disputed territory,
one of their objects in such case being to negative the inference of title from
long continued possession by either party of a particular portion of such
territory. See, as illustrations, the treaties between the United States and
Great Britain of Oct. 20, 1818 (Art. III.), and Aug. 6, 1827 (Art. I.), in relation
to Oregon.

The Venezuelan boundary.

As to the requisite duration of occupation there can be no "arbitrary time limit except through the consensus, agreement, or uniform usage of civilized states. It is equally obvious and much more important to note that, even if it were feasible to establish such arbitrary period of prescription by international agreement, it would not be wise or expedient to do it. Each case should be left to depend upon its own facts. A state which in good faith colonizes as well as occupies, brings about large investments of capital, and founds populous settlements would justly be credited with a sufficient title in a much shorter space than a state whose possession was not marked by any such changes of status. Considerations of this nature induce the leading English authority on international law to declare that, on the one hand, it is 'in the highest degree irrational to deny that prescription is a legitimate means of international acquisition;' and that, on the other hand, it will be found both inexpedient and impracticable to attempt to define the exact period within which it can be said to have become established, or, in other words, to settle the precise limitation of time which gives validity to the title of national possessions.' Again:

The proofs of prescriptive possession are simple and few. They are principally publicity, continued occupation, absence of interruption (usurpatio), aided, no doubt, generally, both morally and legally speaking, by the employment of labor and capital upon the possession