Travers Twiss

“ Supposé 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 volonté manifeste de s’en approprier l’objet. La simple déclaration de volonté d’une nation ne suffit pas non plus qu’une donation papale, ou une convention entre deux nations pour imposer à d’autres le devoir de s’abstenir de l’usage ou de l’occupation de l’objet en question. ”

“ 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.” ”

“ When a nation takes possession of a country bounded by a river, she is considered as appropriating to herself the river also; for the utility of a river is too great to admit a supposition that the nation did not intend to reserve it for herself. Consequently, the nation that first established her dominion on one of the banks of the river, is considered as being the first possessor of all that part of the river which bounds her territory. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ With much more reason might Great Britain have set up an exclusive title against the United States, which she has, in the spirit of moderation, forborne to do. She might have said, “We were entitled by the general law of nations to make settlements in this country, as being unoccupied by any civilised nation. We were the first civilised nation that established a permanent occupation of it, which has never been abandoned, by a settlement in the year 1806 on Frazer’s River. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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.) ”

“ Buchanan, however, in a subsequent letter says, “The Nootka Convention is arbitrary and artificial in the highest degree, and is anything rather than the mere acknowledgment of simple and elementary principles consecrated by the law of nations. In all its provisions it is expressly confined to Great Britain and Spain, and acknowledges no right whatever in any third Power to interfere with the north-west coast of America. ”

“ No individual nation can say, “That is our mercantile flag: such and such powers shall attach to it, because it is our pleasure that it should be so:” on the contrary, it is the practice of nations which defines those powers, and to that practice we must have recourse, if we would ascertain them. ”

“ 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. ”

“ When, therefore, Great Britain, admitting the independence of the United States, denies their rights to the liberties for which they now contend, it is not that she selects from the treaty articles or parts of articles, and says, at her own will, This stipulation is liable to forfeiture by war, and that is irrevocable ”