CHAPTER VIII. RIGHTS OF POSSESSION. The Territory of a Nation-Extension of Territory-Empire a primary Territorial Right-Empire distinct from Domain-Empire over things which cannot be appropriated-Empire over Territorial Rivers-Modification of Right of Empire by Compact-Empire over Frontier Rivers-Treaty Stipulations as to use of Frontier Rivers. Conventional Law of Europe as to Great Rivers-The Thalweg or Midchannel the boundary of Conterminous States-Right of Alluvion-Prescriptive Rights over Rivers-The Stade or Brunshausen Toll. tory of a $136. HAVING considered in the previous chapter The territhe conditions under which a Nation may rightfully Nation. acquire possession of a country, we may proceed to consider the rights which a Nation may exercise by virtue of such possession; in other words, the jura possessionis, as distinguished from the jus possidendi. "When a Nation," writes Vattel', "takes possession of a country, it is considered as acquiring the empire or sovereignty over it at the same time with the domain2. For since the Nation is Free and Independent, it cannot be its intention in settling in a country to leave to others the right to command, or any of those rights which constitute Sovereignty. The whole space over which a Nation extends its government becomes the seat of its jurisdiction, and is called its territory." To the same effect De Wolff writes, "Si gens quædam regionem vacuam occupat, imperium in ea simul occupat3.? Extension of Terri tory. § 137. It is immaterial for the purposes of Empire as between Nations, whether a Nation acquires possession of a country by extending its political body coordinately, or by founding subordinate Political Bodies in the nature of Dependencies. Thus the Union of the North American States has extended itself over the North American Continent, by the admission of Coordinate States into the Union, on a footing of equality with the older and Sister States; whereas the monarchical States of Europe have extended themselves by Colonisation or by founding new States in Dependence upon themselves as Parent States. The political peculiarities, which distinguish these different forms of National growth, as practised by the Nations of the New World and the Old World respectively, are notable; but they are matters which concern the Internal organisation of States, and have no necessary bearing upon their International relations. The founding of a new State in a condition of Political Dependence upon the Mother Country, constitutes as much an extension of a Nation's territory in regard to other Nations, as the incorporation of a new State into a National system of Coordinate States. In both cases the Nation consists of the aggregate body of States, and in the language of arithmeticians, the International Unit may be said to be a multiple political number, of which the component States are in the one case all whole numbers, and in the other case are one or more whole numbers and several fractions of a whole number. Accordingly, when a Nation takes possession of a distant country and settles a colony there, that Country, though separated from the principal establishment or Mother Country, naturally becomes a part of the State equally with its ancient possessions. Whenever, therefore, the Political Laws or Treaties make no distinction between them, anything said of a Nation must also apply to its Colonies*. primary right. 138. The exercise of Empire as between Nations Empire a is thus an incident of territorial possession. Empire territorial is in fact a primary territorial right, and the Empire of a Nation is supreme ratione loci over every person and every thing within its territory. "Quicquid est in territorio, est de territorio"." Its operation however is sometimes suspended by Comity or by Compact, but a claim of extra-territoriality, or of immunity from the Law of the territory (lex loci), is strictly exceptional; the general presumption of the Jus inter Gentes being adverse to it. There are cases however in which the Comity of Nations has suspended the exercise of certain rights of Empire (Jura imperii) so uniformly, that a Custom has grown up whereby the exception has acquired the character of Law; as for instance in regard to the immunity from the Lex Loci, which is extended to the Public Ministers of Foreign Princes, notwithstanding they should be permanently resident within the territory of another Nation, and thereby normally subject to its Empire. distinct § 139. The Right of Empire or Jurisdiction is dis- Empire tinguished from the Right of Dominion or Property. from domi When a Nation takes possession of a vacant tract of nion. land, it acquires under ordinary circumstances the Dominion or fullest Right of Property over it concurrently with the Right of Empire. "Si gens regionem quandam occupavit, omnis terra et quæ in ea 4 Vattel, L. I. § 210. 5 Heffter, § 67. 6 Dominus territorii non permittere intelligitur peregrinis, ut in territorio suo versentur, vel ibidem commorentur, nisi sub Empire over things not be ap sint, in dominio ipsius sunt"." This Right of Dominion or Property gives to a Nation a right to exclude all other Nations from the enjoyment of the territory of which it has taken possession, and its Right of Empire warrants a Nation to enforce its own sanctions against all who would intrude upon its territory. Although, however, the Right of Empire accompanies the Right of Property in the case of International Possession, they are not necessarily concurrent rights, but the Right of Empire may be enjoyed by a Nation over certain things, in which it is incapable of acquiring an absolute Right of Property. "Acquiri imperium potest, etsi res singulæ naturâ in dominium venire non possunt." § 140. The Roman Jurists regarded certain things which can- as incapable by nature of being appropriated. Et propriated. quidem naturali Jure communia sunt omnium hæc, aer, aqua profluens, et mare, et per hoc litora maris 10" It is obvious that the air, running water, and the sea, are not susceptible of detention, and consequently cannot be physically reduced into possession, so as to give rise to that permanent relation, which is implied in the Juridical notion of property. "Again Nature does not give to man a right of appropriating to himself things which may be innocently used, and which are inexhaustible and sufficient for all. For since those things, while common to all, are sufficient to supply the wants of each, whoever should, to the exclusion of all other participants, attempt to render himself sole proprietor of them, would unreasonably seek to wrest the bounteous gifts of Nature from the 7 Wolff, Jus Gentium, § 274. rium et dominium, sunt autem distincta. Grotius, L. II. c. 3. § 4. 2. 10 Just. Inst. L. II. Tit. I. § 1. parties excluded". There is accordingly no warrant of Natural Law for an absolute Right of Property in the running water of rivers (aqua perennis) any more than in the tidal water of the sea. But if the free and common use of a thing of this nature (namely which is of itself inexhaustible) be prejudicial or dangerous to a Nation, the care of its own safety will entitle it so far, and so far only, to control the use of it by others, as to secure that no prejudice or danger result to itself from their use of it. A Nation may accordingly have a Right of Empire over things which are nevertheless by nature communis usûs, and over which it cannot acquire an absolute Right of Property; as, for instance, over portions of the High Seas, or over rivers which form the boundary of its territory. The limits, within which the safety of a Nation warrants such an exercise of Empire, will be considered hereafter. 12 over Terri Rivers. § 141. A river, of which both banks are in the pos- Empire session of one and the same Nation, may be regarded as torial a stream of water contained in a certain channel, which channel forms part of the territory of the Nation 12. Such water accordingly, whilst passing through the territory of a Nation, is subject, like all other things within its territory, to the Empire of the Nation, and those who navigate upon it are subject to the Jurisdiction of the Nation ratione loci. The exercise of the Right of Empire over such a river by a Nation, whilst it flows through its territory, does not in any wise militate against the use of it as running water by other Nations, or conflict with the exercise of their corresponding Right of Empire over it, whilst it flows through their respective territories. We find accord11 Vattel, L. I. § 280. 12 Grotius de Jur. B. et P., L. II. c. 14. § 7. |