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CHAPTER IV.

RIGHTS OF PROPERTY.

The exclusive right of every independent State to its & 1. Naterritory and other property, is founded upon the title tiene originally acquired by occupancy, conquest, or cession, rights. and subsequently confirmed by the presumption arising from the lapse of time, or by treaties and other compacts with foreign States. (a)

lic and

This exclusive right includes the public property or $2. Pubdomain of the State, and those things belonging to li private individuals, or bodies corporate, within its terri- perty. torial limits.

private pro

The right of the State to its public property or do- $ 3. Emi

nent domain is absolute, and excludes that of its own subjects main. as well as other nations. The national proprietary right, in respect to those things belonging to private individuals, or bodies corporate, within its territorial limits, is absolute, so far as it excludes that of other nations ; but, in respect to the members of the State, it is paramount only, and forms what is called the eminent domain ;that is, the right, in case of necessity or for the public safety, of disposing of all the property of every kind within the limits of the State.

(a) [See, on the subject of the inviolability of national territory, the correspondence between Mr. Webster and Lord Ashburton, in the case of the Caroline, destroyed at Schlosser, in December, 1837. Webster's Works, vol. vi. p. 292.]

I Vattel, Droit des Gens, liv. i. ch. 20, SS 235, 244. Rutherforth’s Inst. of Natural Law, vol. i. ch. 9, § 6. das Heffter, Europäische Völkerrecht, SS 64, 69, 70.

Pre

en The writers on natural law have questioned how far scription. 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 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 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.1 (a):

confirmed

$ 5. Con, The title of almost all the nations of Europe to the quest and discovery territory now possessed by them, in that quarter of the

t world, was originally derived from conquest, which has and the been subsequently confirmed by long possession and lapse of time. 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

1 Grotius, de Jur. Bel. ac Pac. lib. i. cap. 4. Puffendorf, Jus Naturæ et Gentium, lib. iv. cap. 12. Vattel, Droit des Gens, tome i. liv. i. ch. 11. Rutherforth’s Inst. of Natural Law, vol. i. ch. 8 ; vol. i. ch. 9, SS 3, 6.

“ Sic qui rem suam ab alio teneri scit, nec quicquam contradicit multo tempore, is nisi causâ alia manifeste appareat, non videtur id alio fecisse animo, quàm quòd rem illam in suaram rerum numero esse nollet.” Grotius in loc. cit.

(a) [This same principle was recognized as the rule, in the suit of Rhode Island against Massachusetts, in reference to the northern boundary of the former State, decided in 1846. The Court said :—“No human transactions are unaffected by time. Its influence is seen over all things subject to change. And this is peculiarly the case in regard to matters which rest in memory, and which, consequently, fade with the lapse of time, and fall with the lives of individuals. For the security of rights, whether of States or individuals, long possession under a claim of title is protected. And there is no controversy in which this great principle may be invoked with greater justice and propriety than in a case of disputed boundary.” Howard's Rep. vol. iv. p. 639, Rhode Island v. Massachusetts.]

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 Castile and Arragon 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 pretension 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 eastward 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 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 by 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 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 continents 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. Dispute In the dispute which took place in 1790, between

Great Britain and Spain, relative to Nootka Sound, the Britain and Spain,

latter claimed all the north-western coast of America as

far north as Prince William's Sound, in latitude 61°, Nootka

upon the ground of prior discovery and long possession,

between Great

relati

Sound.

1 Wheaton's Rep. vol. viii. pp. 571-605: Johnson v. M'Intosh.

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 occupation 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 settlements 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 in all parts of the north-western coasts of North America, or of the islands adjacent, situated to the north of the parts of the said coast already occupied by Spain, wherever the subjects of either of the two powers should have made settlements since the month of April, 1789, or should thereafter make any, the subjects of the other should have free access, and should carry on their trade without any disturbance or molestation.

3. 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.

By an ukase of the Emperor Alexander of Russia, of Controthe 4-16th September, 1821, an exclusive territorial right tween the

wht versy be

1 Annual Register for 1790, (State Papers,) pp. 285–305; 1791, pp. 208, 214, 222–227. Greenhow, History of Oregon and California, p. 466: Proofs and Illustrations, K. No. 1.

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