Dec. 6, 1831, described the captors as "a band acting, as they pretend, under the authority of the Government of Buenos Ayres," and recommended the adoption of measures "for providing a force adequate to the complete protection of our fellow-citizens fishing and trading in those seas." The captures were made by Luis Vernet, acting, by virtue of a decree of June 10, 1829, as political and military governor of the islands, to which the Government of Buenos Ayres claimed title as successor to Spain. Prior to that time, and since the withdrawal of the British forces in 1774, the islands had been unoccupied. In December 1831 Captain Duncan, of the U. S. S. Lexington, proceeded from Buenos Ayres to the islands, released the vessels and their crews, and dispersed the Argentine colonists. The Government of Buenos Ayres protested, but the United States disputed its claim of title, as well as its right to interrupt the exercise of a fishery on unsettled coasts, such as those in question. In January 1833 Great Britain resumed possession of the islands. (Br. and For. State Papers, XX. 314411, 1194-1199; XXII. 1366-1394.) "Can there be any doubt that when the executive branch of the government, which is charged with our foreign relations, shall in its correspondence with a foreign nation assume a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department? ... As, the Executive, in his message, and in his correspondence with the government of Buenos Ayres, has denied the jurisdiction which it has assumed to exercise over the Falkland Islands, the fact must be taken and acted on by this court as thus asserted and maintained." (Williams v. Suffolk Ins. Co. (1839), 13 Pet. 415, 420.) See Calvo, Droit Int., 4th ed., I. 417 et seq. As to the Caroline and Pelew Islands, see For. Rel. 1886, 776, 831. The United States maintained that Navassa Island in 1857, when a citizen of the United States took possession of it under the Guano Islands act, was derelict and abandoned." Jones . United States (1890), 137 U. S. 202, 220, citing a letter of the Assistant Secretary of State to Mr. Clark, Nov. 17, 1858, S. Ex. Doc. 37, 36 Cong. 1 sess. In February 1895 the island of Trinidad, lying 651 geographical miles off the coast of Brazil, was occupied by a British force as a cable station. Brazil protested against the occupation. It was stated, on the par of Great Britain, that possession was first taken of the island by the British Government in 1700; that no evidence was then found of Portuguese possession, nor was any protest made by Portugal; that, when possession was "resumed" by Great Britain, no trace of foreign occupation was found; and that, if there had been any intervening possession, it was to be considered as having been abandoned. Brazil, on the other hand, maintained that the island was discovered by the Portuguese in 1501; that the British consequently gained no title by their naval officer touching there in 1700; that when, in 1781, Great Britain, being at war with Spain, occupied the island for the purpose of harrassing Spanish trade, Portugal, at the instance of Spain, protested; that, on August 22, 1782, the British Admiralty ordered it to be evacuated; that the Portuguese Government subsequently asserted its title against the intrusive acts of British subjects; that Brazilian national vessels visited the island officially in 1825, 1831, 1856, 1871, 1884, and 1894; that the Brazilian Government in 1884 granted to one of its citizens a concession to carry on mining there, and in 1894 took steps toward using the island for a penal colony; and finally, that the island was enumerated among the possessions of Brazil by encyclopædists and geographers. "Occupation is a legitimate method of acquiring domination only with relation to things that have no owner, res nullius, and such are those which are not under the dominion of anyone else, either from never having belonged to anyone or from having been abandoned by their former owner. "In conformity with the rule of nemo suum jactare præsumitur, abandonment is something which is not to be presumed. It depends on the intention of relinquishing, or on the cessation of physical power over the thing, and must not be confounded with simple neglect or desertion. A proprietor may leave a thing deserted or neglected and still retain his ownership. The fact of legal possession does not consist in actually holding a thing, but in having it at one's free disposal. The absence of the proprietor, neglect, or desertion does not exclude free disposal, and hence animo retinetur possessio. "Gaius (Inst. G, 4, sec. 154) teaches * * * 'quoniam possi demus animo solo quum volumus retinere possessionem.'« "Neque vero deseri locum aliquem satis est, ut pro derelicto habendus sit, sed manifestis appareat indiciis derelinquendi affectio,' adds Mühlenbruch. (Doctrina pandectarum, 4th ed. sec. 237.) "Abandonment can only result from the expressed manifestation of the will, for the animus is the possibility of repeating the first will to acquire possession, and, as Savigny teaches (sec. 32), there is no necessity of having constantly the consciousness of possession. Abandonment requires a new act of the will in a contrary direction to that of the first will, animus, in contrarium actus. Pro derelicto autem hebetur, quod dominus ea mente adjecerit, ut id rerum suarum esse nollet,' in the language of the Institute."" "When the thing whose abandonment is alleged in order to legitimize occupation belongs to the dominion of a nation, still more rigorous becomes the necessity of causing the act to rest on some positive and express manifestation of the will of the owner, showing that he does not desire to continue in possession, for in questions of territorial dominion abondonment is not to be presumed. The presumption is not that the thing is a res nullius, as in the case of the aThis citation seems to be inaccurate. Words conveying the meaning apparently here intended may be found in Gaius' Inst., L. IV. § 153. Inst. Just., II. § 47. Institute. 'Insula, quæ in mari nata est, quod raro accidit, occupantis fit; nullius enim esse creditur.'a "If the island of Trinidad was discovered by the Portuguese, whose military occupation thereof continued until 1795; if the facts are historical (and the memory of nations excludes the idea of their being unknown); if the Government by public and positive acts has always shown its conviction that the island of Trinidad is national territory, then the condition of res nullius, which justifies occupation, does not exist. "Possession is lost corpore only when the ability to dispose of a thing is rendered completely impossible, after the disappearance of the status which permits the owner to dispose of the thing possessed. "If Brazil has not displayed by any express act the intention (vontade) of abandoning the island, which had been adjudicated to the Brazilian continent by the act of this country's acquiring its political independence; if there does not exist, as Mr. Phipps will agree, a status preventing it from disposing or making use of the island when and as it pleases; if Brazil has preserved intact, together with its dominion, its possession of that island, which is not a res pro derelicto, then its occupation in the name of the English Government is not a legitimate means of acquiring dominion. "Presenting these reflections to Mr. Phipps, I believe that he will not decline to lay them before the Government of Her Majesty, the Queen of England, as a protest against the occupation of the island of Trinidad, which forms a part of Brazilian territory, and I am convinced that, after the removal of the mistaken impression that the said island was abandoned and consequently res nullius, that Government will issue orders for its disoccupation, which will be due homage to the principles of justice and will once more emphasize the mutual desire of the two countries, Brazil and England, to maintain unaltered the relations between them." Senhor Carlos de Carvalho, Brazilian min. of foreign affairs, to Mr. Phipps, "The friendly services of Portugal were offered in the settlement of the ques- to the island." II. REVOLUTION. $ 90. The establishment of a new sovereignty as the result of revolution is illustrated in the case of the United Provinces of the Netherlands, or Dutch Republic, whose independence, long after its recognition by other powers, was acknowledged by Spain by the treaty concluded at a Inst. Just., II. § 22. Munster in January, 1648; of the Swiss Cantons, which were at length admitted to representation in the Congress of Westphalia; of the United States of America;" of the Spanish American republics and Brazil;' of Belgium; of Greece; and of Texas." The several States which composed this Union, so far at least as regarded their municipal regulations, became entitled, from the time when they declared themselves independent, to all the rights and powers of sovereign States, and they did not derive them from concessions made by the British King. The treaty of peace contains a recognition of their independence, not a grant of it. From hence it results, that the laws of the several State governments were the laws of sovereign States, and as such were obligatory upon the people of such State, from the time they were enacted." Cushing, J., delivering the opinion of the court, in M'Ilvaine v. Coxe's Lessees (1808), 4 Cranch, 209, 212; S. P., Harcourt v. Gaillard, 12 Wheat. 527; Henderson v. Poindexter's Lessee, id. 530. "It has never been admitted by the United States that they acquired anything by way of cession from Great Britain by that treaty [of 1783]. It has been viewed only as a recognition of pre-existing rights, and on that principle the soil and sovereignty within their acknowledged limits were as much theirs at the declaration of independence as at this hour. By reference to the treaty it will be found that it amounts to a simple recognition of the independence and the limits of the United States, without any language purporting a cession or relinquishment of right on the part of Great Britain. In the last article of the treaty of Ghent will be found a provision respecting grants of land made in the islands then in dispute between the two States, which affords an illustration of this doctrine. By that article a stipulation is made in favor of grants before the war, but none for those which were made during the war." Johnson, J., Harcourt ». Gaillard, 12 Wheaton, 527; Henderson 7. Poindexter's Under the treaty with Great Britain of 1783 the United States succeeded to all the rights in that part of old Canada which now forms the State of Michigan that existed in the King of France prior to its conquest from the French by the British in 1760; and, among those rights, to that of dealing with the seigniorial estate of lands granted out as seigniories by the said king, after a forfeiture had occurred for nonfulfillment of the conditions of the fief. U. S. v. Repentigny, 5 Wallace, 211. @Supra, § 4. Supra, § 23 et seq. Wheaton, Hist. of the Law of Nations, 538–555. @ Id. 560-563. Supra, § 33. "The United States regard it as an established principle of public law and of international right that when a European colony in America becomes independent it succeeds to the territorial limits of the colony as it stood in the hands of the parent country." Mr. Marcy, Sec. of State, to Mr. Dallas, July 26, 1856, MS. Inst. Great Britain, In a case involving the power of a certain intendant to make a grant of lands in Mexico in November, 1821, the court said that that year "witnessed the separation of Mexico from the Kingdom of Spain," and referred to the declaration of Mexican independence of February 24, 1821, the treaty of Cordoba of August 21, 1821, which Spain afterwards repudiated, and the surrender of the city of Mexico on September 27, 1821, by which surrender, said the court, the "declaration of independence was made good." The provisional junta then set up promulgated, however, an order continuing in existence various officers, among whom were the intendants, so that the recognition of the authority of the intendant in the case in question, who came within the order, did not necessarily involve the determination of the exact time of the disappearance of the Spanish sovereignty in Mexico. Ely's Adm. . United States, 171 U. S. 220. III. INTERNAL DEVELOPMENT. § 91. A State may gain sovereign rights by internal development. A remarkable example of such evolution is that of Japan." Turkey, though admitted in 1856 to the advantages of the public law and system of concert of Europe, continues to exercise only a limited sovereignty. Various examples may be found in Chapter III., supra, of the development of more or less organized communities into sovereign states. IV. EFFECTS OF CHANGE OF SOVEREIGNTY. 1. ON BOUNDARIES. § 92. "At the date of the ratification of this treaty [United States and Spain, February 22, 1819] the country now constituting Texas belonged to Mexico, part of the monarchy of Spain. Subsequently, in 1824, Mexico became a separate independent power, whereby the a Supra, § 2, p. 9. As to the position of Turkey and the transactions of 1856, see Duggan, The Eastern Question (New York, 1902). |