Conquest and discovery con firmed by compact and the lapse of time. § 165. The title of almost all the nations of Europe to the territory now possessed by them, in that quarter of the world, was originally derived from conquest, which has been subsequently confirmed by long possession and international compacts, to which all the European States have successively become parties. Their claim to the possessions held by them in the New World, discovered by Columbus and other adventurers, and to the territories which they have acquired on the continents and islands of Africa and Asia, was originally derived from discovery, or conquest and colonization, and has since been confirmed in the same manner, by positive compact. Independently of these sources of title, the general consent of mankind has established the principle, that long and uninterrupted possession by one nation excludes the claim of every other. Whether this general consent be considered as an implied contract, or as positive law, all nations are equally bound by it; since all are parties to it; for a new generation to be born and educated, and come into possession of the powers and duties of the State, furnishes the negative limit. Between nations, the question is one of degree as well as of kind; and is so complicated with lapse of time and other circumstances, that no arbitrary rule can be laid down respecting it. The Supreme Court of the United States, in the case respecting the boundaries between Massachusetts and Rhode Island, say, "There is no controversy in which this great principle [prescription] may be invoked with greater justice and propriety than in a case of disputed boundary." Howard, iv. 639. Phillimore also applies to this subject the principles of Derivative and Extinctive Acquisition, as they exist in the Roman private law (ii. §§ 261-294); but Mr. Wheaton has not thought it necessary to pursue that course. The instances given by Phillimore, of acquisition and extinction of national dominion, form an instructive chapter of history, yet without settling any great principle beyond that summarily stated in the text. It may well be doubted if any advantage is gained by importing into the law of international prescription, terms which have become technical in private and public municipal law, like postliminium, derelictio, derivative acquisition, extinctive acquisition, &c. The effect of lapse of time doubtless rests on the same general reason in the one case as in the other; but the terms have become involved with reasons and rules peculiar to the systems creating or adopting them. The intercourse of nations is best managed by referring to those general principles applicable to what is international, and not in terms and phrases appropriated to other systems, and colored by their associations. It will be found, that, where lapse of time is invoked as a corroboration of national title, there are so many elements introduced of original right, voluntary or passive acquiescence or abandonment, or conquest justo bello, on the one hand; and, on the other, allegations of temporary and forced submission, with continued adverse claim, original wrong, imperfect possession, &c., with no possibility, as in civil cases, of settling the facts by a binding decision, that each case must rest very much on its own circumstances, and must be met by the application of general principles and natural presumptions.]—D. since none can safely disregard it without impugning its own' title to its possessions; and since it is founded upon mutual utility, and tends to promote the general welfare of mankind. § 166. The Spaniards and Portuguese took the lead The Papal among the nations of Europe, in the splendid maritime Bull of 1493. discoveries in the East and the West, during the fifteenth and sixteenth centuries. According to the European ideas of that age, the heathen nations of the other quarters of the globe were the lawful spoil and prey of their civilized conquerors, and as between the Christian powers themselves, the Sovereign Pontiff was the supreme arbiter of conflicting claims. Hence the famous bull, issued by Pope Alexander VI., in 1493, by which he granted to the united crowns of Castile and Arragon all lands discovered, and to be discovered, beyond a line drawn from pole to pole, one hundred leagues west from the Azores, or Western Islands, under which Spain has since claimed to exclude all other European nations from the possession and use, not only of the lands but of the seas in the New World west of that line. Independent of this papal grant, the right of prior discovery was the foundation upon which the different European nations, by whom conquests and settlements were successively made on the American continent, rested their respective claims to appropriate its territory to the exclusive use of each nation. Even Spain did not found her pretension solely on the papal grant. Portugal asserted a title derived from discovery and conquest to a portion of South America; taking care to keep to the eastward of the line traced by the Pope, by which the globe seemed to be divided between these two great monarchies. On the other hand, Great Britain, France, and Holland, disregarded the pretended authority of the Papal See, and pushed their discoveries, conquests, and settlements, both in the East and West Indies; until conflicting with the paramount claims of Spain and Portugal, they produced bloody and destructive wars between the different maritime powers of Europe. But there was one thing in which they all agreed, that of almost entirely disregarding the right of the native inhabitants of these regions. Thus the bull of Pope Alexander VI. reserved from the grant to Spain all lands which had been previously occupied by any other Christian nation; and the patent granted by Henry VII. of England to John Cabot and his sons, authorized them "to seek out and discover all islands, regions, and provinces whatsoever, that may belong to heathens and infidels ;" and "to subdue, occupy, and possess these territories, as his vassals and lieutenants." In the same manner, the grant from Queen Elizabeth to Sir Humprey Gilbert empowers him to "discover such remote heathen and barbarous lands, countries, and territories, not actually possessed by any Christian prince or people, and to hold, occupy, and enjoy the same, with all their commodities, jurisdictions, and royalties." It thus became a maxim of policy and of law, that the right of the native Indians was subordinate to that of the first Christian discoverer, whose paramount claim excluded that of every other civilized nation, and gradually extinguished that of the natives. In the various wars, treaties, and negotiations, to which the conflicting pretensions of the different States of Christendom to territory on the American continents have given rise, the primitive title of the Indians has been entirely overlooked, or left to be disposed of by the States within whose limits they happened to fall, by the stipulations of the treaties between the different European powers. Their title has thus been almost entirely extinguished by force of arms, or by voluntary compact, as the progress of cultivation gradually compelled the savage tenant of the forest to yield to the superior power and skill of his civilized invader. (a) 102 Dispute between Great Britain and § 167. In the dispute which took place in 1790, between Great Britain and Spain, relative to Nootka Sound, the latter claimed all the north-western coast of America as far north as Prince William's Sound, in latitude 61°, upon the ground of prior discovery and long possession, confirmed by the eighth article of the treaty of Utrecht, referring to the state of possession in the time of His Catholic Majesty Charles II. This claim was contested by the British government, upon the principle that the earth is the common inheritance of mankind, of which each individual and each nation has a right to appropriate a share, by occupation and cultivation. This dispute was terminated by a convention between the two powers, stipulating that their respective subjects should not be disturbed in their navigation and fisheries in the Pacific Ocean or the South Seas, or in landing on the coasts of those seas, not already occupied, for the purpose of carrying on their commerce with the natives of the coun (a) Wheaton's Rep. viii. 571-605, Johnson v. M'Intosh. try, or of making settlements there, subject to the following provisions: 1. That the British navigation and fishery should not be made the pretext for illicit trade with the Spanish settlements; and that British subjects should not navigate or fish within the space of ten marine leagues from any part of the coasts already occupied by Spain. 2. That in all parts of the north-western coasts of North America, or of the islands adjacent, situated to the north of the parts of the said coast already occupied by Spain, wherever the subjects of either of the two powers should have made settlements since the month of April, 1789, or should thereafter make any, the subjects of the other should have free access, and should carry on their trade without any disturbance or molestation. 3. That, with respect to the eastern and western coasts of South America, and the adjacent islands, no settlement should be formed thereafter, by the respective subjects, in such parts of those coasts as are situated to the south of those parts of the same coasts, and of the adjacent islands already occupied by Spain; provided that the respective subjects should retain the liberty of landing on the coasts and islands so situated, for the purposes of their fishery, and of erecting huts and other temporary buildings, for those purposes only. (a) tween the States and respecting western § 168. By an ukase of the Emperor Alexander of Rus- Controsia, of the 4-16th September, 1821, an exclusive ter- versy beritorial right on the north-west coast of America was United asserted as belonging to the Russian Empire, from Russia, Behring's Straits to the 51st degree of north latitude, the northand in the Aleutian Islands, on the east coast of Siberia, coast of and the Kurile Islands, from the same straits to the South America. Cape in the island of Ooroop, in 45° 51' north latitude. The navigation and fishery of all other nations were prohibited in the islands, ports, and gulfs, within the above limits; and every foreign vessel was forbidden to touch at any of the Russian establishments above enumerated, or even to approach them, within a less distance than 100 Italian miles, under penalty of confiscation of (a) Annual Register for 1790, (State Papers,) pp. 285-305; 1791, pp. 208, 214, 222-227. Greenhow, History of Oregon and California, 466, Proofs and Illustrations, K. No. 1. the cargo. The proprietary rights of Russia to the extent of the north-west coast of America, specified in this decree, were rested upon the three bases said to be required by the general law of nations and immemorial usage; that is, upon the title of first discovery; upon the title of first occupation; and, in the last place, upon that which results from a peaceable and uncontested possession of more than half a century. It was added, that the extent of sea, of which the Russian possessions on the continents of Asia and America form the limits, comprehended all the conditions which were ordinarily attached to shut seas (mers fermées); and the Russian government might consequently deem itself authorized to exercise upon this sea the right of sovereignty, and especially that of entirely interdicting the entrance of foreigners. But it preferred only asserting its essential rights, by measures adapted to prevent contraband trade within the chartered limits of the American Russian Company. All these grounds were contested, in point of fact as well as right, by the American government. The Secretary of State, Mr. John Q. Adams, in his reply to the communication of the Russian Minister at Washington, stated, that from the period of the existence of the United States as an independent nation, their vessels had freely navigated these seas, and the right to navigate them was a part of that independence; as was also the right of their citizens to trade, even in arms and munitions of war, with the aboriginal natives of the north-west coast of America, who were not under the territorial jurisdiction of other nations. He totally denied the Russian claim to any part of America south of the 55th degree of north latitude, on the ground that this parallel was declared, in the charter of the Russian American Company, to be the southern limit of the discoveries made by the Russians in 1799; since which period they had made no discoveries or establishments south of that line, on the coast claimed by them. With regard to the suggestion, that the Russian government might justly exercise sovereignty over the northern Pacific Ocean, as mare clausum, because it claimed territories both on the Asiatic and American coasts of that ocean, Mr. Adams merely observed, that the distance between those coasts on the parallel of 51 degrees, was not less than four thousand miles; and he concluded by expressing the persuasion of the American government, that the citizens of the United States would remain unmolested in the prosecution of their lawful com |