The Oregon Territory Part 7

t.i.tLE BY SETTLEMENT.

t.i.tle by Settlement an imperfect t.i.tle.--Presumption of Law in its Favour.--Made perfect by undisturbed Possession.--Wheaton.--t.i.tle by Usucaption or Prescription.--Vattel.--Acquiescence a Bar to conflicting t.i.tle of Discovery.--Hudson's Bay Settlements.--Treaty of Utrecht.--The Vicinitas of the Roman Law.--Mid-channel of Rivers.--Contiguity, as between conterminous States, a reciprocal t.i.tle.--Negotiations between Spain and the United States of America.--Vattel.--Territorial Limits extended by the Necessity of the Case.--Right of Maritime Jurisdiction, how far accessorial to Right of Territory.--Right of Pre-emption.--New Zealand.--North American Indians.--Right of Innocent Use.

t.i.tle by settlement, like t.i.tle by discovery, is of itself an imperfect t.i.tle, and its validity will be conditional upon the territory being vacant at the time of the settlement, either as never having been occupied, or as having been abandoned by the previous occupant. In the former case, it resolves itself into t.i.tle by occupation; in the latter, the consent of the previous occupant is either expressed by some convention, or presumed from the possession remaining undisputed. t.i.tle by settlement, however, differs from t.i.tle by discovery, or t.i.tle by occupation, in this respect,--that no second discovery, no second occupation can take place, but a series of settlements may have been successively made and in their turn abandoned, so that the last settlement, when confirmed by a certain prescription, may found a good territorial t.i.tle. Again, the presumption of law will always be in favour of a t.i.tle by settlement. "Commodum possidentis in eo est, quod etiamsi ejus res non sit, qui possidet, si modo actor non potuerit suam esse probare, remanet in suo loco possessio; propter quam causam, c.u.m obscura sint utriusque jura contra pet.i.torem judicari solet." (Inst., l. iv., t.i.t.

15, -- 4.)

Where t.i.tle by settlement is superadded to t.i.tle by discovery, the law of nations will acknowledge the settlers to have a perfect t.i.tle; but where t.i.tle by settlement is opposed to t.i.tle by discovery, although no convention can be cited in proof of the discovery having been waived, still, a tacit acquiescence on the part of the nation that a.s.serts the discovery, during a reasonable lapse of time since the settlement has taken place, will bar its claim to disturb the settlement. Thus, Mr.

Wheaton (part ii., chap. iv., -- 5) writes:--"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 nations, and the munic.i.p.al 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 t.i.tle, or his intention to relinquish it."

t.i.tle, then, by settlement, though originally imperfect, may be thus perfected by enjoyment during a reasonable lapse of time, the presumption of law from undisturbed possession being, that there is no prior owner, because there is no claimant,--no better proprietary right, because there is no a.s.serted right. The silence of other parties presumes their acquiescence: and their acquiescence presumes a defect of t.i.tle on their part, or an abandonment of their t.i.tle. A t.i.tle once abandoned, whether tacitly or expressly, cannot be resumed. "Celui qui abandonne une chose cesse d'en etre le maitre, et par consequent une chose abandonnee devient une chose qui n'est a personne." (Wolff, cciii.)

t.i.tle by settlement, then, as distinguished from t.i.tle by discovery, when set up as a perfect t.i.tle, must resolve itself into t.i.tle by _usucaption_ or _prescription_. Wolff defines usucaption to be an acquisition of domain founded on a presumed desertion. Vattel says it is the acquisition of domain founded on long possession, uninterrupted and undisputed, that is to say, an acquisition solely proved by this possession. _Prescription_, on the other hand, according to the same author, is the exclusion of all pretensions to a right--an exclusion founded on the length of time during which that right has been neglected; or, according to Wolff's definition, it is the loss of an inherent right by virtue of a presumed consent.

Vattel, writing in French, and observing that the word usucaption was but little used in that language, made use of the word _prescription_ whenever there were no particular reasons for employing the other. The same remark may be applied in reference to our own language, and thus this t.i.tle is generally spoken of as _t.i.tle by prescription_.

What lapse of time is requisite to found a valid t.i.tle by prescription has not been definitely settled. The law of nature suggests no rule. Where, however, the claimant cannot allege undoubted ignorance on his part, or on the part of those from whom he derives his right, or cannot justify his silence by lawful and substantial reasons, or has neglected his right for a sufficient number of years as to allow the respective rights of the two parties to become doubtful, the presumption of relinquishment will be established against him, and he will be excluded by ordinary prescription.

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 t.i.tle. This result would be so generally inconvenient, as to be inadmissible.

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." (General Collection of Treaties, &c. London, 1710-33, vol. i., p. 446.) The King of England, it is true, in his charter had set forth the t.i.tle of the British Crown, as founded on discovery: the t.i.tle by discovery, however, required to be perfected by settlement; and thus, in the negotiations, the subsidiary t.i.tle by settlement was likewise set up by the British Commissioners, and the acquiescence of the French was alleged, either as a bar to their setting up any conflicting t.i.tle by discovery, or as establishing the presumption of their having abandoned their a.s.serted right of discovery.

What amount of _contiguous_ territory attaches to a settlement, so as to prevent the t.i.tles of two nations from conflicting by virtue of adjoining settlements, seems to be governed by no fixed rule, but must depend on the circ.u.mstances of the case. Vattel observes (l. ii., -- 95,) "If, at the same time, two or more nations discover and take possession of an island, or _any other desert land without an owner_, they ought to agree between themselves, and make an equitable part.i.tion; but, if they cannot agree, each will have the right of empire and the domain in the parts in which they first settled." The t.i.tle of _vicinitas_ was recognised in the Roman law, in the case of recent alluvial deposits, as ent.i.tling the possessor of the adjoining bank to a claim of property; but, if it were an island formed in the mid-channel, there was a common t.i.tle to it in the proprietors of the two banks. "Insula nata in flumine, quod frequenter accidit, si quidem mediam partem fluminis tenet, communis est eorum, qui ab utraque parte fluminis prope ripam praedia possident, pro modo lat.i.tudinis cujusque fundi, quae lat.i.tudo prope ripam sit: quod si alteri parti proximior est, eorum est tantum, qui ab ea parte prope ripam praedia possident." (Inst. ii., t.i.t. i., -- 22.) So, in the case where a river abandons its former channel, the ancient bed belongs to those "qui prope ripam praedia possident;" and in the Digest (xli., t.i.t. i., l. 7,) we have a case supposed where a river has changed its course, and occupied for a time the entire property (totum agrum) of an individual, and then deserted its new channel: the Roman law did not consider that, strictly speaking, the t.i.tle of the former proprietor revived, inasmuch as he had no adjoining land. "Cujus tamen _totum agrum_ novus alveus occupaverit, licet ad priorem alveum reversum fuerit flumen; non tamen is, cujus is ager fuerat, stricta ratione quicquam in eo alveo habere potest: quia et ille ager, qui fuerat, desiit esse, amissa propria forma: et quia vicinum praedium nullum habet, non potest _ratione vicinitatis_ ullam partem in eo alveo habere."

Again, in the case of a river, the banks of which are possessed by contiguous states, the presumption of law is, that the _Thalweg_, or mid-channel, is the mutual boundary; since rivers are, in the case of conterminous states, _communis juris_, unless acknowledged by them to be otherwise, or prescribed for by one of the parties. "The general presumption," observes Lord Stowell, (in the Twee Gebroeders, 3 Rob., p.

339,) "certainly bears strongly against such exclusive rights, and the t.i.tle is matter to be established on the part of those claiming under it, in the same manner as all other demands are to be substantiated, by clear and competent evidence."

A t.i.tle by contiguity, as between conterminous states, would thus appear to be a reciprocal t.i.tle: it cannot be advanced by one party, excepting as a principle which sanctions a corresponding right in the other. The practice is in accordance with this. Thus, the United States of America, in its discussions with Spain respecting the western boundary of Louisiana, contended, that "whenever one European nation makes a discovery, and takes possession of any portion of that continent (sc., of America,) and another afterwards does the same at some distance from it, where the boundary between them is not determined by the principle above mentioned, (sc., actual possession of the sea-coast,) the middle distance becomes such of course." (British and Foreign State Papers, 1817-18, p.

328.)

Circ.u.mstances however will sometimes create exceptions, as for instance, where the control of a district left unoccupied is necessary for the security of a state, and not essential to that of another: in this case the principle of _vicinitas_ would be overruled by higher considerations, as it would interfere with the perfect enjoyment of existing rights of established domain.

Thus Vattel, l. i., -- 288. "A nation may appropriate to herself those things of which the free and common use would be prejudicial or dangerous to her. This is a second reason for which governments extend their dominion over the sea along their coasts, as far as they are able to protect their rights. It is of considerable importance to the safety and welfare of the state that a general liberty be not allowed to all comers to approach so near their possessions, especially with ships of war, as to hinder the approach of trading nations, and molest their navigation." And again, after stating that it was not easy to determine strictly the limits of this right, he goes on to say: "Each state may, on this head, make what regulation it pleases so far as respects the transactions of the citizens with each other, or their concerns with their sovereign, but, between nation and nation, all that can reasonably be said is, that in general, the dominion of the state over the neighboring sea extends as far as her safety _renders it necessary_ and her power is able to a.s.sert it; since on the one hand she cannot appropriate to herself a thing that is common to all mankind, such as the sea, except so far as she _has need of it for some lawful end_, and on the other, it would be a vain and ridiculous pretension to claim a right which she were wholly unable to a.s.sert." At present, by the general law of nations, the possession of the coast is held to ent.i.tle a nation to exclusive jurisdiction over the adjoining seas to the extent of a marine league, as being necessary for the free execution of her own munic.i.p.al laws, and as being within the limits which she can command by her cannon. On the ground then of her own right of self-preservation, a nation which has made a settlement may possess a perfect right of excluding other nations from settling within a given distance. This right, however, is evidently an accessory of the right of settlement.

A further accessorial right of settlement has, in modern times, been recognised by the practice of civilised nations in both hemispheres, namely, a right of pre-emption from the aboriginal inhabitants in favor of the nation which has actually settled in the country. It is this right which Great Britain a.s.serts against all other civilised nations in respect to New Zealand, and which the United States of America a.s.sert against all other civilised nations in respect to the native Indians. The claim involved in it is evidently based upon the principle, that the acquisition of such territory by any other nation would be prejudicial to the full enjoyment of the existing territorial rights of the nation which has made settlement there. Such seems to be the only recognised ground upon which a _perfect right of contiguity_ can be set up. The principle of mere vicinity in the case of nations, unless strictly limited, will only result in furnishing a graceful pretext for the encroachments of the strong upon the weak, whenever a powerful state should cast a longing eye upon an adjoining district, and feel a natural inclination to render its own possessions more complete:

Oh si angulus ille Proximus accedat, qui nunc deformat agellum.

The right of _innocent use_ seems to have been admitted into the code of international law in order to obviate the strength of this temptation, but it is only an imperfect right, unlike that of necessity, and all attempts to construct a t.i.tle upon principles of convenience can result only in imperfect t.i.tles, which require the express acknowledgment of other nations to give them validity.

CHAPTER X.

ON DERIVATIVE t.i.tLE.

t.i.tle by Conquest.--t.i.tle by Convention.--Vattel--Martens.--Wheaton.--The Practice of Nations.--United States.--Great Britain.--Kent's Commentaries.--Mixed Conventions.--The Fisheries of Newfoundland.--Treaty of Paris.--Distinction between Rights and Liberties.--Permanent Servitude.--Negotiations in 1818.--Mr. Adams' Argument.--Lord Bathurst's Letter.--Mr. Adams' Reply.--Convention of 1818.

Derivative t.i.tle may result from involuntary or voluntary cession (_traditio._) Involuntary cession takes place when a nation vanquished in war abandons its territory to the conqueror who has seized it. Voluntary cession, on the other hand, is marked by some compact or convention; its object may be either to prevent a war, or to cement a peace. The repeated occurrence of such voluntary cessions in later times, has led the chief writers on international law to make a distinction accordingly between transitory conventions, which mark such cessions, and treaties properly so called.

Vattel, b. xi., ch. xii., -- 153, lays it down that,--

"The compacts which have temporary matters for their object are called agreements, conventions, and pactions. They are accomplished by one single act, and not by repeated acts. These compacts are perfected in their execution once for all; treaties receive a successive execution, whose duration equals that of the treaty."

Martens, -- 58, to the same effect observes,--

"Les traites de cession, de limites, d'echange, et ceux meme qui const.i.tuent une servitude de droit public, ont la nature des conventions transitoires; les traites d'amitie, de commerce, de navigation, les alliances egales et inegales, ont celle des traites proprement dits (_faedera._)

"Les conventions transitoires sont perpetuelles par la nature de la chose." (-- 1.)

Mr. Wheaton, part iii., c. 11, follows in the same line:--

"General compacts between nations may be divided into what are called transitory conventions, and treaties properly so called. The first are perpetual in their nature, so that being carried into effect, they subsist independent of any change in the sovereignty and form of government of the contracting parties; and although their operation may in some cases be suspended during war, they revive on the return of peace without any express stipulation. Such are treaties of cession, boundary, or exchange of territory, or those which create a permanent servitude in favor of one nation within the territory of another."

If we look to the practice of nations, we find that the tribunals of the United States, equally with those of Great Britain, maintain this doctrine. Thus in the case of The Society for the Propagation of the Gospel in Foreign Parts v. Town of Newhaven, in Wheaton's Reports of Cases adjudged in the Supreme Court of the United States, Feb. 1823, vol. viii., p. 494, Mr. Justice Washington, in delivering judgment for the plaintiffs, said, "But we are not inclined to admit the doctrine urged at the bar, that treaties become extinguished, ipso facto, by war between the two governments, unless they should be revived by an express or implied renewal on the return of peace. Whatever may be the lat.i.tude of doctrine laid down by elementary writers on the law of nations, dealing in general terms in relation to this subject, we are satisfied that the doctrine contended for is not universally true. There may be treaties of such a nature, as to their object and import, as that war will put an end to them; but where treaties contemplate a permanent arrangement of territorial and other national rights, or which, in their terms, are meant to provide for the event of an intervening war, it would be against every principle of just interpretation to hold them extinguished by the event of the war. If such were the law, even the treaty of 1783, so far as it fixed our limits, and acknowledged our independence, would be gone, and we should have had again to struggle for both upon original revolutionary principles. Such a construction was never a.s.serted, and would be so monstrous as to supersede all reasoning.

"We think, therefore, that treaties stipulating for permanent rights and general arrangements, and professing to aim at perpetuity, and to deal with the case of war as well as of peace, do not cease on the occurrence of war, but are at most only suspended while it lasts; and unless they are waived by the parties, or new and repugnant stipulations are made, they revive in their operation at the return of peace."

In the case of Sutton v. Sutton, 1 Russell and Mylne, p. 663, which was decided by Sir J. Leach, in the Rolls Court in London, in 1830, a question was raised whether by the ninth article of the treaty of 1794, between Great Britain and the United States, American citizens who held lands in Great Britain on Oct. 20, 1795, and their heirs and a.s.signs, are at all times to be considered, as far as regards those lands, not as aliens, but as native subjects of Great Britain. The 28th article of the treaty declared that the ten first articles should be permanent, but the counsel in support of the objection to the t.i.tle contended, that "it was impossible to suggest that the treaty was continuing in force in 1813; it necessarily ceased with the commencement of the war. The 37 G. 3, c. 97, could not continue in operation a moment longer without violating the plainest words of the Act. That the word 'permanent' was used, not as synonymous with 'perpetual or everlasting,' but in opposition to a period of time expressly limited." On the other hand, the counsel in support of the t.i.tle maintained that "the treaty contained articles of two different descriptions; some of them being temporary, others of perpetual obligation. Of those which were temporary, some were to last for a limited period; such as the various regulations concerning trade and navigation; and some were to continue so long as peace subsisted, but being inconsistent with a state of war, would necessarily expire with the commencement of hostilities. There were other stipulations which were to remain in force in all time to come, unaffected by the contingency of peace or war. For instance, there are clauses for fixing the boundaries of the United States. Were the boundaries so fixed to cease to be the boundaries, the moment that hostilities broke out?"

The Master of the Rolls, in his judgment, said, "The privileges of natives being reciprocally given, not only to the actual possessors of lands, but to their heirs and a.s.signs, it is a reasonable construction that it was the intention of the treaty, _that the operation of the treaty should be permanent_, and not depend upon the continuance of a state of peace."

"The Act of the 37 G. 3, c. 95, gives full effect to this article of the treaty in the strongest and clearest terms; and if it be, as I consider it, the true construction of this article, that it was to be permanent, and independent of a state of peace or war, then the Act of Parliament must be held in the 24th section, to declare this permanency, and when a subsequent section provides that the act is to continue in force, so long only as a state of peace shall subsist, it cannot be construed to be directly repugnant and opposed to the 24th section, but is to be understood as referring to such provisions of the Act only as would in their nature depend upon a state of peace."

The third article, however, of the Treaty of 1794, which may be referred to in Martens' Recueil, ii., p. 497, was of a mixed character, as it recognised a right of one kind, and conceded a liberty of another kind.

"It is agreed, that the people of the United States shall continue to enjoy, unmolested, the _right_ to take fish of every kind on the Grand Bank, and on other banks of Newfoundland; also, in the Gulf of St.

Lawrence and all other places in the sea where the inhabitants of both countries used, at any time heretofore, to fish. And also, that the inhabitants of the United States shall have _liberty_ to take fish of every kind on such part of the coast of Newfoundland as British fishermen shall use, (but not to dry or cure the same on that island) and also on the coasts, bays, and creeks of all other of _her Britannic Majesty's dominions_ in America; and that the American fishermen shall have _liberty_ to dry and cure fish in any of the unsettled bays, harbors, and creeks of Nova Scotia, Magdalen Islands, and Labrador, _so long as the same shall remain unsettled_; but so soon as the same, or either of them, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish _at such settlements_ without a previous agreement for that purpose with the inhabitants, proprietors, or possessors of the ground."

That the grant of this liberty to American fishermen to take fish on portions of the coast of his Britannic Majesty's dominions, and to dry and cure their fish unconditionally on certain districts not yet settled, subject however to conditions when such districts should become settled, was a provision of a distinct character from the recognition of their right to fish in certain seas and gulfs. .h.i.therto open to both parties--was to be presumed both from the terms of the provisions being distinct from each other, and from the nature of the things themselves, as the liberties were to be enjoyed within his Britannic Majesty's dominions, the right was to be exercised in the seas and gulfs, over which his Britannic Majesty claimed no exclusive sovereignty.

The principle established by these two cases seems to be this,--that where a convention in its terms contemplates a permanent arrangement of territorial or other national right, the continuance of which would not be inconsistent with a state of war, it will not expire with the commencement of hostilities, though its operation may in certain cases be suspended till the return of peace.

Hence indeed, conventions, by which a right is recognised, are no sooner executed than they are completed and perfected. If they are valid, they have in their own nature a perpetual and irrevocable effect. To use the words of Vattel, "As soon as a right is transferred by lawful convention, it no longer belongs to the state that has ceded it: the affair is concluded and terminated."

To the same effect Judge Kent, the Blackstone of the United States, in his Commentaries upon American law, (vol. i., p. 177,) adopts almost word for word the judgment of the Supreme Court:--"Where treaties contemplate a permanent arrangement of national rights, or which by their terms are meant to provide for the event of an intervening war, it would be against every principle of just interpretation to hold them extinguished by the event of war. They revive at peace, unless waived, or new and repugnant stipulations be made."

Discussions, however, and disputes have not unfrequently arisen as to the character of certain conventions, from the circ.u.mstance that on occasions where rights have been recognised, liberties or favors have been conceded in other articles of the same agreement.

To this effect Martens (-- 58) observes, "Cette distinction entre les conventions transitoires et les traites serait encore plus importante, si nombre des traites, et nommement les traites de paix, n'etaient pas composes d'articles de l'un et de l'autre genre, [mixtes,] ce qui met dela difficulte dans l'application des principes enonces."

A striking ill.u.s.tration of this observation of M. Martens may be found in the discussions which took place between the governments of the United States and Great Britain in respect to the fisheries on the Banks of Newfoundland, after the Treaty of Ghent.

By the first article of the treaty signed at Paris in 1783, between Great Britain and the United States of America, his Britannic Majesty had acknowledged the said United States [fourteen in number as specified] to be free, sovereign, and independent states.

This article then contained _the recognition of a right once and for all_; and as the main and princ.i.p.al object of the treaty was the recognition of the independence of the United States, this treaty may justly be cla.s.sed amongst transitory conventions, which are completed and perfected as soon as executed.

Another question, however, might obviously be raised in case of a war,--whether the words of the article created what Martens designates "une servitude de droit public," and what Mr. Wheaton speaks of as "a permanent servitude in favor of one nation within the territory of another," which from the nature of the thing would be suspended during the war, but would revive on the restoration of peace, or whether they merely conceded a favor, the duration of which would be subject to the continuance of peaceful relations between the two states, so that the obligation would cease with the breaking out of war.