Territory of the Hud 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 the enjoyment of a thing by the possessor of it, length of possession, instead of strengthening, would impair the title of the possessor: the inconvenience of such a result is so obvious, that the practice of Nations and individuals has equally repudiated it. §122. Thus in regard to the territory of the Hudson's son's Bay Bay Company, it was alleged in the negociations preCompany liminary 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 31" The King of England, it is true, in his Charter had set forth the Title of the British Crown, as founded on discovery; the title by discovery, however, required to be perfected by settlement; and thus, in the negociations, the subsidiary title 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 title by discovery, or as establishing the presumption of their having abandoned their asserted rights of discovery 32. 31 General Collection of Treat'es, &c., London, 1710-33, vol. I. P. 446. 32 Twiss on The Oregon Question, p. 171. Contiguity. § 123. What extent of territory is de jure append- Right of ant to the settlement of a Nation in a given place by reason of Contiguity, must depend upon the circumstances of each case. It may sometimes be determined without difficulty by the geographical features of the Country, but in many cases it will be governed by considerations founded on the necessary uses of the settlers. The principle of Vicinitas, as applied in the Jurisprudence of Imperial Rome, has been admitted by the usage of Nations to control this question in the absence of special circumstances. Thus in the case of alluvial deposits, the Roman Jurists held that the possessor of the adjoining bank of a river had a proprietary title to them, and if an island were formed in the channel of the river, the possessor of the neighbouring bank had a right of property in it; on the other hand, if an island were formed in the midchannel, it would be the common property of the owners of the two banks. Thus, "Quod per alluvionem agro nostro flumen adjecit, jure gentium nobis acquiritur;" again, “Insula nata in flumine, quod frequenter accidit, si quidem mediam partem fluminis tenet, communis est eorum, qui ab utraque parte fluminis prope ripam prædia possident, pro modo latitudinis cujusque fundi, quæ latitudo prope ripam sit; quod si alteri parti proximior est, eorum est tantum, qui ab ea parte prope ripam prædia possident." A different practice in the case of Nations, whereby such newly formed lands should be open to the occupancy of the first comer, would manifestly be inconsistent with the security of the Nation, which had previously established itself on the adjoining or neighbouring bank. Upon the like considerations of security, islands which have been formed by the accumulation of mud 32 Dig., 1. XL. t. 1. § 7. 35 Inst. II. tit. 1. § 22. Arcifinious and drift at the mouth of a river, and which keep sentinel as it were over the approaches to the mainland, are regarded as natural or necessary appendages of the Coast on which they border, and from which they are formed. "Consider," says Lord Stowell in the case of certain islands at the entrance of the River Mississippi, "what the consequences would be, if lands of this description were not considered as appendant to the mainland, and as comprised within the bounds of territory. If they do not belong to the United States of America, any other Power may occupy them, they might be embanked and fortified. What a thorn would this be in the side of America! It is physically possible at least, that they might be so occupied by European Nations, and then the command of the river would be no longer in America, but in such settlements. The possibility of such a consequence is enough to expose the fallacy of any arguments that are addressed to shew, that these islands are not to be considered as part of the Territory of America 31" 35 $124. A title to Territory by reason of contiguity, (ratione vicinitatis), in the case of arcifinious States, so called according to Varro because their territory admits of boundaries fit to keep the enemy out, (fines arcendis hostibus idoneos), in other words, of States whose territory admits of practical limits, such as rivers and mountains, is a reciprocal title. In such cases each State has an equality of right, so that the watershed-line or line of greatest elevation in the case of mountains, and the Thalweg or mid-channel, in the case of rivers, which corresponds to a line drawn along the lowest part of the bed of the river or the line of deepest depression, forms the juridical boundary between two such States. The practice of Nations has conformed to this principle in regard to territory which is not arcifinious, in cases where there is intermediate vacant land contiguous to the settlements of two nations. Each Nation has an equal title to extend its settlement over the intermediate vacant land, and thus it happens that the middle distance satisfies the juridical title, whilst it is the nearest approximation to a natural boundary, and the most convenient to determine. Thus the United States of America in their 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, (America,) and another afterwards does the same at some distance from it, when the boundary between them is not determined by the principle above mentioned, (namely, that when a Nation takes possession of an extent of sea-coast, it has a right of possession over the interior country coextensive with the waters of the rivers emptying within that coast), the middle distance becomes such of course 36" So, in the case of a river, the opposite banks of which are possessed by different Nations, the Thalweg or mid-channel is the Normal water-boundary between them. Circumstances however may create exceptions, as for instance, when the control of a district not actually reduced into the possession of a Nation, is necessary for its security, and is not essential to the security of the conterminous State. "No Nation," writes Vattel, "can lawfully appropriate to herself a 36 British and Foreign State Papers, 1817-18. p. 328. Discovery World. too disproportionate extent of country, and reduce other Nations to want subsistence and a place of abode. A German Chief in the time of Nero said to the Romans, As Heaven belongs to the Gods, so the Earth is given to the human race, and desert countries are common to all,' giving those proud conquerors to understand that they had no right to reserve and appropriate to themselves a country which they left desert. The Romans had laid waste a chain of country along the Rhine, to cover their provinces from the incursions of the Barbarians. The remonstrance of the German Chief would have had a good foundation, had the Romans pretended to keep without reason a vast country which was of no use to them; but those lands which they would not suffer to be inhabited, serving as a rampart against foreign Nations, were of considerable use to the Empire 38."" § 125. “There is another celebrated question," writes of the New Vattel, "to which the discovery of the New World has given rise. It is asked whether a Nation may lawfully take possession of some part of a vast country in which there are none but erratic Nations, whose scanty population is incapable of occupying the whole. We have already observed in establishing the obligation to cultivate the Earth, that those Nations cannot exclusively appropriate to themselves more land than they have occasion for, or more than they are able to settle and cultivate. Their unsettled habitation in those immense regions cannot be accounted a true and legal possession, and the people of Europe too closely pent up at home, finding land of which the savages stood in no particular need, and of which they made no actual or constant use, were lawfully entitled to take possession of it, and settle it with colonies. 37 Sicut cœlum Diis, ita terras generi mortalium datas; quæque vacuæ, eas publicas esse. |