Travers Twiss

“ 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.” ”

“ But the independence of the United States was precisely the question upon which a previous war between them and Great Britain had been waged. Other nations might acknowledge their independence without a treaty, because they had no right, or claim of right, to contest it: but this acknowledgment, to be binding upon Great Britain, could have been made only by treaty, because it included the dissolution of one social compact between the parties, as well as the formation of another. ”

“ For as civil law, being the act of the whole body politic, doth overrule each several part of the same body, so there is no reason that any one commonwealth of itself should, to the prejudice of another, annihilate that whereupon the whole world has agreed.”
It is acknowledged by every one, in the language of Mr. Hallam, one of the latest and ablest of the numerous writers who have discussed the merits of the treatise of Grotius on the Right of War and Peace, that the publication of this work marked an epoch in the philosophical, and it may be said, in the political history of Europe. ”

“ Yet, in the face of this solemn admission, at the commencement of the earliest negotiations, and of the fact that the title has been treated of on so many occasions, Mr. Buchanan now asserts that “our own American title to the extent of the valley of the Columbia, resting as it does on discovery, exploration, and possession—a possession acknowledged by a most solemn act of the British government itself, is a sufficient assurance against all mankind; whilst our superadded title derived from Spain extends our exclusive rights over the whole territory in dispute against Great Britain.” ”

“ It is universally admitted, that when a nation takes possession of a country, she is considered to appropriate to herself all its natural appendages, such as lakes, rivers, &c., and it is perfectly intelligible, why the practice of European nations has sanctioned the exclusive title of the first settlers on any extent of sea-coast to the interior country within the limits of the coast which they have occupied, because their settlements bar the approach to the interior country, and other nations can have no right of way across the settlements of independent nations. ”

“ Pour acquérir 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 déclaration même de vouloir occuper, faite antérieurement à l’occupation effectuée par un autre, ne suffirait pas. Il faut qu’on ait réellement occupé le premier, et c’est par cela seul qu’en acquérant un droit exclusif sur la chose, on impose à tout tiers l’obligation de s’en abstenir. ”

“ Le simple fait d’avoir été le premier à découvrir ou à visiter une île, &c., abandonnée ensuite, semble insuffisant, même de l’aveu des nations, tant qu’on n’a point laissé de traces permanentes de possession et de volonté, et ce n’est pas sans raison qu’on a souvent disputé entre les nations, comme entre les philosophes, si des croix, des poteaux, des inscriptions, &c., suffisent pour acquérir ou pour conserver la propriété exclusive d’un pays qu’on ne cultive pas. ”

“ A dwarf is as much a man as a giant: a small republic is no less a sovereign state than the most powerful kingdom;” so that every argument which rests on the grounds that the millions already within reach of the Pacific Ocean, entitle the United States by their numbers to the occupation and sovereignty of the country, to the exclusion of Great Britain, is out of place where questions of greater right, and not of greater interest, are under discussion. ”

“ At present, by the general law of nations, the possession of the coast is held to entitle 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 municipal 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. ”

“ If the United States leave her in undisturbed enjoyment of all her holds upon Europe, Asia, and Africa, with all her actual possessions in this hemisphere, we may very fairly expect, that she will not think it inconsistent with a very wise or friendly policy, to watch with eyes of jealousy and alarm every possibility of extension to our natural dominion in North America, which she can have no solid interest to prevent, until all possibility of her preventing it shall have vanished. ”

“ For the jurisdiction of every nation within its own territory is exclusive and absolute, and all limitations to the full and complete exercise of that jurisdiction must be traced up to the consent of the nation itself. But the comity of nations regards a public vessel as representing the sovereignty of the nation whose flag it bears. If it therefore leaves the high seas, the common territory of all nations, and enters into a friendly port, it is admitted to the privileges which would be extended to the sovereign himself. ”

“ If the discovery of the mouth of a river, followed up within a reasonable time by the first exploration of its main channel and its branches, and appropriated by the first settlements on its banks, do not constitute a title to the territory drained by its waters in the nation performing these acts, then the principles consecrated by the practice of civilised nations ever since the discovery of the New World must have lost their force. ”

“ For, since the nation is free and independent, it can have no intention, in settling in a country, to leave to others the rights of command, or any of those rights that constitute sovereignty. The whole space over which a nation extends its government, becomes the seat of its jurisdiction, and is called its territory. ”

“ Whilst Great Britain leaves the United States unmolested in the enjoyment of all the advantages, rights, and liberties, stipulated in their behalf in the Treaty of 1783, it is immaterial to them whether she founds her conduct upon the mere fact that the United States are in possession of such rights, or whether she is governed by good faith and respect for her own engagements. ”

“ The comity of nations, indeed, in sanctioning title by discovery at all, as distinct from title by occupation, has sought to strengthen rather than to impugn the proprietary right of nations; but no territorial title would be safe from question, if the dormant ashes of alleged discoveries might at any time be raked up. ”

“ Simply that, as far as the settlement of Astoria is concerned, it is not necessary for the United States to prove its right of dominion. Its right of possession is a valid right, unless a right of dominion can be established by some other Power. But Great Britain asserts no right of dominion,—she does not claim to evict the United States from its actual possession,—but, as she claims no exclusive title for herself, so she recognises no exclusive title in any other Power. ”

“ 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. ”

“ I remarked, that it was scarcely to be presumed that any European nation would henceforth project any colonial establishment on any part of the north-west coast of America, which as yet had never been used to any other useful purpose than that of trading with the aboriginal inhabitants, or fishing in the neighbouring seas; but that the United States should contemplate, and at one day form, permanent establishments there, was naturally to be expected, as proximate to their own possessions, and falling under their immediate jurisdiction. ”

“ But every nation that governs itself by its own authority and laws, without dependence on any foreign power, is a sovereign state; and when it acts as a nation, it acts in a sovereign capacity. When a nation therefore occupies a vacant country, it imports its sovereignty with it, and its sovereignty entitles it not merely to a [Pg 112] disposing power over all the property within it, which is termed its Eminent Domain, but likewise to an exclusive right of command in all places of the country which it has taken possession of. ”

“ The great continent of America, north and south, was never claimed or held by any one European nation, nor was either great section of it. Their pretensions have been always bounded by more moderate and rational principles. The one laid down has obtained general assent.
“This principle was completely established in the controversy which produced the war of 1755. Great Britain contended that she had a right, founded on the discovery and possession of such territory, to define its boundaries by given latitudes in grants to individuals, retaining the sovereignty to herself from sea to sea. ”

“ 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 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. ”

“ A case can certainly be imagined, where a later discovery may be entitled 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 taking possession of a vacant country for the purpose of settlement is one of the highest acts of sovereign power, for a nation thereby acquires not merely “the domain, by virtue of which it has the exclusive use of the country for the supply of its necessities, and may dispose of it as it thinks [Pg 230] proper, but also the empire, or the right of sovereign command, by which it directs and regulates at its pleasure every thing that passes in the country,” (Vattel, i., § 204.) ”

“ The United States, on the other hand, are not satisfied with claiming a right to make settlements, but they assert a right to exclude Great Britain from making settlements, and this, too, by virtue of an act performed by a private citizen, without any commission from the state, subsequent to the time when the right of Great Britain to make settlements had been formally recognised by Spain in a solemn treaty, and was thus patent to the civilised world. ”

“ 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 asserts against all other civilised nations in respect to New Zealand, and which the United States of America assert against all other civilised nations in respect to the native Indians. ”

“ The Minister of the United States appears, by his letter, to be well aware that Great Britain has always considered the liberty formerly enjoyed by the United States, of fishing within British limits, and using British territories, as derived from the third article of the Treaty of 1783, and from that alone; and that the claim of an independent state to occupy and use, at its discretion, any portion of the territory of another, without compensation or corresponding indulgence, cannot rest on any other foundation than conventional stipulation. ”

“ In an analogous manner, if a merchant ship from Carolina should enter the port of London, with one or more negro slaves on board, the mercantile flag of the United States would not preclude them from the freedom which the soil of Great Britain imparts to all who come within its precincts.
A public vessel, however, is not entitled, as a matter of right, to any exemption from the jurisdiction of the sovereign whose territory she enters. ”

“ Claims of territory are claims of a most sacred nature, and, as the case of vacant lands, a claim of discovery by one nation is to supersede and extinguish thence-forward the rights of all other nations to take possession of the country as vacant, the reason of the thing requires that the newly-acquired character of the country should be indicated by some public act. ”

“ Harder conditions could not well have been dictated by a conquering to a conquered nation as the price of peace, neither do they accord with that spirit of just accommodation with which Mr. Rush, in 1824, expressly declared the Government of the United States to be animated, nor with those principles of mutual convenience which it was then agreed on both sides to keep in view, in order to further the settlement of their mutual claims. ”