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express reservations of the claim of Great Britain to that territory, upon which the American settlement must be considered an encroachment.
3. That the titles to the territory in question, derived by the United States from Spain through the treaty of 1819, amounted to nothing more than the rights secured to Spain equally with Great Britain by the Nootka Sound Convention of 1790: namely, to settle on any part of those countries, to navigate and fish in their waters, and to trade with the natives.
4. That the charters granted by British sovereigns to colonies on the Atlantic coasts were nothing more than cessions to the grantees of whatever rights the grantor might consider himself to possess, and could not be considered as binding the subjects of any other nation, or as part of the law of nations, until they had been confirmed by treaties.
DELAGOA BAY, 1872.
(Hall's International Law., 3d. Ed., 119.)
“A SOMEWHAT recent controversy to which title by occupation has given rise turned mainly upon the effect of a temporary cessa. tion of the authority of the occupying state. From 1823 to 1875, when the matter was settled by arbitration, a dispute existed between England and Portugal as to some territory at Delagoa Bay, which was claimed by the former under a cession by native chiefs in the first-mentioned year, and by the latter on the grounds, amongst others, of continuous occupation. It was admitted that Portuguese territory reached to the northern bank of the Rio de Espirito Santo, or English River, which flows into a bay, and that a port and village had long been established there. The question was whether the sovereignty of Portugal extended south of the river, or whether the lands on that side had remained in the possession of their original owners. England relied upon the facts that the natives professed to be independent in 1823, that they acted as such, and that the commandant of the fort repudiated the possession of authority over them. In the memorials which were submitted on behalf of Portugal, amidst much which had no special reference to the territory in dispute, there was enough to show that posts had been maintained within it from time to time, and that authority had probably been exercised intermittently over the natives. The area of the territory being small, and all of it being within easy reach of a force in possession of the Portuguese settlement, there could be little difficulty in keeping up sufficient control to prevent a title by occupation from dying out. There was, therefore, a presumption in favor of the Portuguese claim. The French government, which acted as arbitrator, took the view that the interruption of occupation, which undoubtedly took place in 1823, was not sufficient to oust a title supported by occasional acts of sovereignty done through nearly three centuries, and adjudged the territory in question to Portugal.” [The award in favor of Portugal was in substance, on the grounds of first discovery, in the 16th century, and of continued occupation and control of the territory in dispute.]
(Phillimore's International Law, 3d Ed., 368.)
“There was a dispute of long standing between France and England respecting Santa Lucia, one of the Antilles Islands. After the treaty of Aix-la-Chapelle (1748), the matter was referred to the decision of certain commissioners, and it was the subject of various State Papers in 1751 and 1754.
“The French negotiators maintained, that though the English had established themselves in 1639, they had been driven out or massacred by the Caribbees in 1640, and they had, animo et facto and sine spe redeundi, abandoned the island; that Santa Lucia being vacant, the French had seized it again in 1650, when it became immediately, and without the necessity of any prescriptive aid, their property.
“ The English negotiators contended that their dereliction had been the result of violence, that they had not abandoned the island sine spe redeundi, and that it was not competent to France to profit by this act of violence, and surreptitiously obtain the territory of another state; and that by such a proceeding no dominium could accrue to them. The principal discussion turned, not upon the nature of the conditions of prescriptive acquisition, but upon the nature of the conditions of voluntary dereliction, by which the rights of property were lost, and the possession returned to the class of vacant and unowned territories.” 1
1 At the present time it is generally conceded that discovery alone is not enough to give title to territory ; it must be followed by actual occupation.
In regard to the extent of the interior country to which the occupation of the SECTION 4.-RECOGNITION OF INDEPENDENCE.
J. Q. ADAMS TO PRESIDENT MONROE, AUG. 24, 1818.
(1 Wharton's Digest, 121.)
“THERE is a stage in such (revolutionary) contests when the party struggling for independence has, as I conceive, a right to demand its acknowledgment by neutral parties, and when the acknowledgment may be granted without departure from the obligations of neutrality. It is the stage when the independence is established as matter of fact, so as to leave the chance of the opposite party to recover their dominion utterly desperate. The neutral nation must, of course, judge for itself when this period has arrived ; and as the belligerent nation has the same right to judge for itself, it is very likely to judge differently from the neutral and to make it a cause or pretext for war, as Great Britain did expressly against France in our Revolution, and substantially against Holland.
“ If war thus results, in point of fact, from the measure of recognizing a contested independence, the moral right or wrong of the war depends upon the justice and sincerity and prudence with which the recognizing nation took the step. I am satisfied that the cause of the South Americans, so far as it consists in the assertion of independence against Spain, is just. But the justice of a cause,
, however it may enlist individual feelings in its favor, is not sufficient to justify third parties in siding with it. The fact and the right combined can alone authorize a neutral to acknowledge a new and disputed sovereignty.” 1
sea-coast gives title, the extravagant claim was put forward in some of the earlier charters, granting lands in North America, that such right extended from the Atlantic to the Pacific Ocean. A more reasonable rule was laid down by the United States commissioners, appointed to settle the boundary of Louisiana, namely, “that when any European nation takes possession of any extent of seacoast, that possession is understood as extending into the interior country, to the sources of the rivers emptying themselves within that coast, to all their branches, and the country they cover, and to give it a right in exclusion of all other nations to the same."
1 In M Ivaine v. Coxe's Lessee, 4 Cranch, 212, the Supreme Court of the United States say : “ That the several states which composed this Union, so far at least as regarded their municipal regulations, became entitled, from the time when they
FOSTER & ELAM v. NEILSON.
SUPREME COURT OF THE UNITED STATES, 1829.
(2 Peters, 253.)
This was the case of lands in the disputed territory between the rivers Iberville and Perdido granted to the plaintiffs by the Spanish governor. The defendant alleged that by the treaty of Ildefonso, 1800, this territory was ceded by Spain to France, and in 1803, by France to the United States. And it was a question of the interpretation of the treaty of cession.
The court refused to go into the merits of the treaty, but considered itself bound by the decision of the political department of the government, whose province it was to deal with foreign relations.
Extract from the judgment, MARSHALL, C. J.:
“*** In a controversy between two nations concerning national boundary, it is scarcely possible that the courts of either should refuse to abide by the measures adopted by its own government.
“ There being no common tribunal to decide between them, each determines for itself on its own rights, and if they cannot adjust their differences peaceably, the right remains with the strongest. The judiciary is not that department of the government to which the assertion of its interests against foreign powers is confided; and its duty commonly is to decide upon individual rights, according to those principles which the political departments of the nation have established. If the course of the nation has been a plain one, its courts would hesitate to pronounce it erroneous.
declared themselves independent, to all the rights and powers of sovereign states, and that they did not derive them from concessions made by the British king. The treaty of peace contains a recognition of their independence, not a grant of it. From hence it results, that the laws of the several state governments were the laws of sovereign states, and as such were obligatory upon the people of such state from the time they were enacted."
New states may be recognized conditionally. By the 43d article of the treaty of Berlin, 1878, it is stipulated that the independence of Roumania shall be recognized by the high contracting parties “on the conditions laid down in the two following articles.” These conditions are, first, that no person shall be deprived of civil or political rights by reason of his creed; and, second, that Roumania shall restore to Russia certain territory detached from Russia by the treaty of Paris, 1856.
Servia was recognized upon a similar condition as to religious freedom. (Articles 34 and 35.)
“We think then, however individual judges might construe the treaty of St. Ildefonso, it is the province of the court to conform its decisions to the will of the legislature, if that will has been clearly expressed. ***
“ After these acts of sovereign power over the territory in dispute, asserting the American construction of the treaty by which the government claims it, to maintain the opposite construction in its own courts would certainly be an anomaly in the history and practice of nations. If those departments which are entrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its right of dominion over a country of which it is in possession, and which it claims under a treaty; if the legislature has acted on the construction thus asserted, it is not in its own courts that this construction is to be denied. A question like this respecting the boundaries of nations, is, as has been truly said, more a political than a legal question ; and in its discussion the courts of every country must respect the pronounced will of the legislature.” 1
HARCOURT v. GAILLARD.
SUPREME COURT OF THE UNITED STATES.
(12 Wheaton, 523.)
This was the case of a British grant of land within the limits of the old thirteen colonies, made during the Revolutionary war, in 1777.
Held that such grant was invalid, on the ground that the title to lands had already passed to the United States.
Extract from the opinion of the court:
“ But this is not the material fact in the case; it is this, that this limit was claimed and asserted by both of those states in the Declaration of Independence, and the right to it was established by the most solemn of all international acts, the treaty of peace. It has never been admitted by the United States, that they acquired any. thing by way of cession from Great Britain by that treaty. It has been viewed only as a recognition of pre-existing rights, and on that principle the soil and sovereignty, within their acknowledged limits, were as much theirs at the declaration of independence as at this
1 To the same effect, see In re Cooper, 143 United States Reports, 472.