The Oregon Territory Part 6

(Bracton de Leg., l. ii., c. 1.)

Amongst professed writers upon international law, Wolff, who is justly considered as the founder of the science, and who, in his voluminous writings, furnished the stores out of which Vattel compiled his "Law of Nations," has set forth so clearly this principle, as that upon which t.i.tle by occupation is based, that his words may be quoted from Luzac's French translation of his "Inst.i.tutions du Droit de la Nature et des Gens:"--

"On appelle _occupation_, un fait par lequel quelqu'un declare qu'une chose qui n'est a personne doit etre a lui, et la reduit en tel etat qu'elle peut etre sa chose. Il parait de la, que le droit d'occuper une chose, ou de s'en emparer, appartient naturellement a chacun indifferemment, ou bien que c'est un droit commun de tous les hommes, et comme on appelle maniere primitive d'acquerir, celle par laquelle on acquiert le domaine d'une chose qui n'est a personne, il s'ensuit que _l'occupation est la maniere primitive d'acquerir_." (Part ii., ch. ii., -- ccx.)

As, however, the term _occupation_ has come to signify in common parlance rather a temporary holding than a permanent possession,--e. g., the occupation of Ancona by the French, the occupation of Lisbon by the English, the occupation of the Four Legations by the Austrians, there is an inconvenience in its ambiguity, and from this circ.u.mstance it has resulted, that _occupancy_ is frequently employed to designate what is, properly speaking, occupation. This however is to be regretted, as the word occupancy is required in its own sense to mark the right to take possession, as distinct from the right to keep possession,--the _jus possidendi_ from the _jus possessionis_,--the _jus ad rem_, as civilians would say, from the _jus in re_. Thus the right of a nation to colonise a given territory to the exclusion of other nations is a right of _occupancy_; the right of the colonists to exclude foreigners from their settlements would be a right of _occupation_.

Mr. Wheaton, in his Elements of International Law, (l. i., chap. iv., p.

205,) says, "The exclusive right of every independent state to its territory and other property is founded upon the t.i.tle originally acquired by _occupancy_, and subsequently confirmed by the presumption arising from the lapse of time, or by treaties and other compacts of foreign states."

It may be gathered from these writers, that to const.i.tute a valid territorial t.i.tle by occupation, the territory must be previously vacant (_res nullius_,) and the _state_ must intend to take and maintain possession: and that the vacancy of the territory may be presumed from the absence of inhabitants, and will be placed beyond question by the acquiescence of other nations. If those conditions are fulfilled, the proprietary t.i.tle which results is _a perfect t.i.tle against all other nations_.

There are however several acts, that are accessorial to occupation, which do not separately const.i.tute a perfect t.i.tle. Such acts are Discovery, Settlement, Demarcation. Thus, discovery, may not be accompanied with any intention to occupy, or may not be followed up by any act of occupation within a reasonable time; settlement may be effected in territory not vacant; boundaries may be marked out which encroach upon the territory of others; so that acts of this kind will, separately, only found an imperfect or conditional t.i.tle: their combination, however, under given circ.u.mstances, may establish an absolute and perfect t.i.tle.

CHAPTER VIII.

ON t.i.tLE BY DISCOVERY.

Discovery not recognised by the Roman law.--Wolff.--The Discovery must be notified.--Ill.u.s.tration of the Principle in reference to Nootka Sound.--Vattel.--Discovery must be by virtue of a Commission from the Sovereign.--Must not be a transient Act.--Martens' Precis du Droit des Gens.--Kluber.--Bynkershoek.--Mr Wheaton.--Practice of Nations.--Queen Elizabeth.--Negotiations between Great Britain and the United States, in 1824.--Nootka Sound Controversy.--Discussions between the United States and Russia, in 1822.--Declaration of British Commissioners, in 1826.--Mr. Gallatin's View.--Conditions attached to Discovery.--No second Discovery.--Wolff.--Lord Stowell.--Progressive Discovery.--Dormant Discoveries inoperative for t.i.tle.

Among the acts which are accessorial to occupation, the chief is Discovery. The t.i.tle, however, which results from discovery, is only an imperfect t.i.tle. It is not recognised in the Roman law, nor has it a place in the systems of Grotius or Puffendorff. The principle, however, upon which it is based is noticed by Wolff:--

"Pareillement, si quelqu'un renferme un fonds de terre dans des limites, ou la destine a quelque usage par un acte non pa.s.sager, ou qui, se tenant sur ce fonds limite, il dise en presence d'autres hommes, qu'il veut que ce fonds soit a lui, il s'empare." (Inst.i.tutes du Droit des Gens, -- 213.)

To this pa.s.sage M. Luzac has appended the following note, pointing out the application of the principle to international relations:--

"Nous ne trouvons pas cette occupation dans le droit Romain. C'est sur elle que sont fondes les droits que les puissances s'attribuent, en vertu des decouvertes."

It will be seen from the text of M. Wolff, that the intention to take possession at the time of discovery must be declared. The comity of nations, then, presumes that the execution will follow the intention. But the reason of the thing requires that the discovery should be notified at the time when it takes place, otherwise, where actual possession has not ensued, the presumption will be altogether against a discovery, or if there had been a discovery, that it was a mere pa.s.sing act, that the territory was never taken possession of, or if so, was abandoned immediately. Unless then the intention to appropriate can be presumed from the announcement of the discovery, which the comity of nations will respect,--if the first comer has not taken actual possession, but has pa.s.sed on, the presumption will be that he never intended to appropriate the territory. Thus a discovery, when it has been concealed from other nations, has never been recognised as a good t.i.tle: it is an inoperative act.

A case in point may be cited to ill.u.s.trate the application of this principle. Mr. Greenhow (p. 116) observes, in reference to the voyage of Perez in 1775,--"The Government of Spain perhaps acted wisely in concealing the accounts of this expedition, which reflected little honour on the courage or the science of the navigators: but it has thereby deprived itself of the means of establishing beyond question the claim of Perez to the discovery of the important harbour called Nootka Sound, which is now, by general consent, a.s.signed to Captain Cook."

Vattel (b. i., l. xviii., -- 207) discusses this t.i.tle at large:--

"All mankind have an equal right to things that have not yet fallen into the possession of any one, and those things belong to the person who first takes possession of them. When therefore a nation finds a country uninhabited, and without an owner, it may lawfully take possession of it, and _after it has sufficiently made known its will in this respect_, it cannot be deprived of it by another nation. Thus navigators going on voyages of discovery, furnished _with a commission from their sovereign_, and meeting with islands or other lands in a desert state, have taken possession of them in the name of the nation; and this t.i.tle has been usually respected, provided it was soon after followed by a real possession."

According to this statement, the act of discovery must be sanctioned by a commission from the sovereign, and the will of the nation to take possession must be by its agent sufficiently made known. What acts should be respected by the courtesy of nations, and be held sufficient to make known formally the will of a nation to avail itself of a discovery, has been a subject of much dispute. The tendency, however, both of writers and statesmen, has been to limit rather than to extend the t.i.tle by discovery, ever since the Papal Bulls of the 16th century enlarged it to an inconvenient extent, to the exclusive benefit of two favoured nations.

Thus Vattel:--"The law of nations will, therefore, not acknowledge the property and sovereignty of a nation over any uninhabited countries except those of which it has really taken actual possession, in which it has formed settlements, or of which it makes actual use. In effect, when navigators have met with desert countries in which those of other nations had, in their transient visits, erected some monuments to show their having taken possession of them, they have paid as little regard to that empty ceremony as to the regulation of the Popes, who divided a great part of the world between the crowns of Castile and Portugal."

To the same purport, Martens, in his Precis du Droit des Gens, -- 37:--

"Suppose que l'occupation soit possible, it faut encore qu'elle ait eu lieu effectivement,--que le fait de la prise de possession ait concouru avec la volonte manifeste de s'en approprier l'objet. La simple declaration de volonte d'une nation ne suffit pas non plus qu'une donation papale, ou une convention entre deux nations pour imposer a d'autres le devoir de s'abstenir de l'usage ou de l'occupation de l'objet en question.

Le simple fait d'avoir ete le premier a decouvrir ou a visiter une ile, &c., abandonnee ensuite, semble insuffisant, meme de l'aveu des nations, tant qu'on n'a point laisse de traces permanentes de possession et de volonte, et ce n'est pas sans raison qu'on a souvent dispute entre les nations, comme entre les philosophes, si des croix, des poteaux, des inscriptions, &c., suffisent pour acquerir ou pour conserver la propriete exclusive d'un pays qu'on ne cultive pas."

Kluber, to the same effect, writes thus: (-- 126)--"Pour acquerir une chose par le moyen de l'occupation, il ne suffit point d'en avoir seulement l'intention, ou de s'attribuer une possession purement mentale; la declaration meme de vouloir occuper, faite anterieurement a l'occupation effectuee par un autre, ne suffirait pas. Il faut qu'on ait reellement occupe le premier, et c'est par cela seul qu'en acquerant un droit exclusif sur la chose, on impose a tout tiers l'obligation de s'en abstenir. L'occupation d'une partie inhabitee et sans maitre du globe de la terre, ne peut donc s'etendre plus loin qu'on ne peut tenir pour constant qu'il y ait eu _effectivement prise de possession, dans l'intention de s'attribuer la propriete_. Comme preuves d'une pareille prise de possession, ainsi que de la continuation de la possession en propriete, peuvent servir tous les signes exterieurs qui marquent l'occupation et la possession continue."

On this pa.s.sage there is the following note:--"Le droit de propriete d'etat peut, d'apres le droit des gens, continuer d'exister, sans que l'etat continue la possession corporelle. Il suffit qu'il existe un signe qui dit, que la chose n'est ni _res nullius_, ni delaissee. En pareil cas personne ne saurait s'approprier la chose, sans ravir de fait, a celui qui l'a possedee jusqu'alors en propriete, ce qu'il y a opere de son influence d'une maniere legitime: enlever ceci ce serait blesser le droit du proprietaire."

It would be difficult to determine theoretically what would const.i.tute a sufficient sign that the territory is not vacant, or abandoned.

Bynkershoek, who was opposed to the continuance of proprietary right from discovery, unless corporeal possession was maintained, subsequently qualified his view. "Praeter animum possessionem desidero, sed qualemcunque, quae probet, me nec corpore desiisse possidere." (De Dominio Maris, ch. i., De Origine Dominii.)

Mr. Wheaton, in his work on International Law, (vol. i., ch. iv., -- 5,) writes thus:--"The claim of European nations to the possessions held by them in the New World discovered by Columbus and other adventurers, and to the territories which they have acquired on the continents and islands of Africa and Asia, was originally derived from discovery or conquest and colonisation, and has since been confirmed in the same manner by positive compact."

The practice of nations seems fully to bear out the theory of jurists, as it may be gathered from the language of sovereigns and statesmen. Thus, in reference to the northwest coast of America, on occasion of the earliest dispute between the crowns of Spain and England, Queen Elizabeth refused to admit the exclusive pretensions of the Spaniards. When Mendoza, the Spanish amba.s.sador, remonstrated against the expedition of Drake, she replied, "that she did not understand why either her subjects, or those of any other European prince, should be debarred from traffic in the Indies: that, as she did not acknowledge the Spaniards to have any t.i.tle by donation of the Bishop of Rome, so she knew no right they had to any places other than those they were in actual possession of; for that their having touched only here and there upon a coast, and given names to a few rivers or capes, were such insignificant things as could in no ways ent.i.tle them to a propriety further than in the parts where they actually settled, and continued to inhabit." (Camden's Annals, anno 1580.)

Such was the language of the Crown of England in the sixteenth century, and in no respect is the language of Great Britain altered in the present day. Thus, in reference to the negotiations between Great Britain and the United States, in 1824, Mr. Rush, in a letter to Mr. Adams, of August 12, 1824, writes thus:--"As to the alleged prior discoveries of Spain all along that coast, Britain did not admit them, but with great qualification. She could never admit that the mere fact of Spanish navigators having first seen the coast at particular points, even where this was capable of being substantiated as the fact, without any subsequent or efficient acts of sovereignty or settlement following on the part of Spain, was sufficient to exclude all other nations from that portion of the globe." (State Papers, 1825-26, p. 512.)

But the Spanish crown itself, on the occasion of the Nootka Sound controversy, felt that a claim to exclusive territorial t.i.tle could not be reasonably maintained on the plea of mere discovery. Thus, in the Declaration of his Catholic Majesty, on June 4, 1790, which was transmitted to all the European Courts, and consequently bound the Crown of Spain in the face of all nations, the following precise language was employed:--

"Nevertheless, the King does deny what the enemies to peace have industriously circulated, that Spain extends pretensions and rights of sovereignty over the whole of the South Sea, as far as China. When the words are made use of, 'In the name of the King, his sovereignty, navigation, and exclusive commerce to the continent and islands of the South Sea,' it is the manner in which Spain, in speaking of the Indies, has always used these words,--that is to say, to the continent, islands, and seas which belong to his Majesty, _so far as discoveries have been made and secured to him by treaties and immemorial possession, and uniformly acquiesced in_, notwithstanding some infringements by individuals, who have been punished upon knowledge of their offences. And the King sets up no pretensions to any possessions, the right to which he cannot prove by irrefragable t.i.tles."

The pretensions of Spain to absolute sovereignty, commerce, and navigation, had already been rejected by the British Government, and they had insisted that English subjects, trading under the British flag, "have an indisputable right to the enjoyment of a free and uninterrupted navigation, commerce, and fishery; and to the possession of such establishments as they should form, _with the consent of the natives of the country, not previously occupied by any of the European nations_."

Again, the Crown of Spain, in demanding a.s.sistance from France, according to the engagements of the Family Compact, rested her supposed t.i.tle upon "treaties, demarcations, _takings of possession_, and the most decided acts of sovereignty exercised by the Spaniards from the reign of Charles II., and authorised by that monarch in 1692."

It will thus be seen that Spain, in setting up a t.i.tle by discovery, supported her claims by alleging that the act was authorised by the Crown, was attended with "takings of possession," and was confirmed by treaties, e. g., that of Utrecht.

To a similar purport, in the discussions which took place between Russia and the United States of America, in respect to the north-west coast of America, which ultimately resulted in the convention signed at St.

Petersburgh, 5/17 April, 1824, the Chevalier de Poletica, the Russian minister at Washington, in his letter of 28th February, 1822, to the American Secretary of State, grounded the claims of Russia upon these three bases, as required by the general law of nations and immemorial usage among nations:--"The t.i.tle of first discovery; the t.i.tle of first occupation; and, in the last place, that which results from a peaceable and uncontested possession of more than half a century." (British and Foreign State Papers, 1821-22, p. 485.)

To a similar purport the British Commissioners, Messrs. Huskisson and Addington, in the sixth conference held at London, December 16, 1826, maintained this doctrine:--"Upon the question how far prior discovery const.i.tutes a legal claim to sovereignty, the law of nations is somewhat vague and undefined. It is, however, admitted by the most approved writers, that mere accidental discovery, unattended by exploration--by formally taking possession in the name of the discoverer's sovereign--by occupation and settlement, more or less permanent--by purchase of the territory, or receiving the sovereignty from the natives--const.i.tutes the lowest degree of t.i.tle; and that it is only in proportion as first discovery is followed by any or all of these acts, that such t.i.tle is strengthened and confirmed."

In accordance with the same view, the plenipotentiary of the United States, Mr. Gallatin, in his counter-statement, which Mr. Greenhow has appended to the second edition of his work, a.s.serts that "Prior discovery gives a right to occupy, provided that occupancy take place within a reasonable time, and is followed by permanent settlements and by the cultivation of the soil."

It thus seems to be universally acknowledged, that discovery, though it gives a right of occupancy, does not found the same perfect and exclusive t.i.tle which grows out of occupation; and that unless discovery be followed within a reasonable time by some sort of settlement, it will be presumed either to have been originally inoperative, or to have been subsequently abandoned.

It seems likewise to be fully recognised by the law of nations, as based upon principles of natural law, and as gathered from the language of negotiations and conventions, that in order that discovery should const.i.tute an inchoate t.i.tle to territory, it must have been authorised by the sovereign power, must have been accompanied by some act of taking possession significative of the intention to occupy, and must have been made known to other nations.

Thus Lord Stowell (in the Fama, 3 Rob. p. 115) lays it down, that "even in newly discovered countries, _where a t.i.tle is meant to be established_ for the first time, some act of possession is usually done and proclaimed as a _notification of the fact_."

There can be no second discovery of a country. In this respect t.i.tle by discovery differs from t.i.tle by settlement. A t.i.tle by a later settlement may be set up against a t.i.tle by an earlier settlement, even where this has been formed by the first occupant, if the earlier settlement can be shown to have been abandoned.

M. Wolff explains the reason of this very clearly (-- cciii.:)--"On dit qu'une chose est abandonnee, si simplement son maitre ne veut pas qu'elle soit plus long temps sienne, c'est a dire, que l'acte de sa volonte ne contienne rien de plus que ceci, que la chose ne doit plus etre a lui.

D'ou il paroit, que celui qui abandonne une chose cesse d'en etre le maitre, et que par consequent une chose abandonnee devient une chose qui n'est a personne; mais qu'aussi long temps que le maitre n'a pas l'intention d'abandonner sa chose, il en reste le maitre."

The same writer observes elsewhere (-- MCMx.x.xIX.)--"L'abandon requis pour l'usucaption, et pour la prescription qui en est la suite, ne se presume pas aussi ais.e.m.e.nt contre les nations qu'entre les particuliers, a cause d'un long silence."

A t.i.tle by second discovery cannot, from the nature of the thing, be set up against a t.i.tle by first discovery. The term _second discovery_ itself involves a contradiction, and where the discovery has been progressive, "further discovery" would seem to be the more correct phrase. A case can certainly be imagined, where a later discovery may be ent.i.tled to greater consideration than a prior discovery, namely, where the prior discovery has been kept secret; but in such a case the prior discovery is not a discovery which the law of nations recognises, for it has not been made known, at the time when it took place, to other nations; and the inconvenience which would attend the setting up of claims of discovery long subsequently to the event upon which they are professed to be based, would be so great, that the comity of nations does not admit it. The comity of nations, indeed, in sanctioning t.i.tle by discovery at all, as distinct from t.i.tle by occupation, has sought to strengthen rather than to impugn the proprietary right of nations; but no territorial t.i.tle would be safe from question, if the dormant ashes of alleged discoveries might at any time be raked up.

CHAPTER IX.