3

XIV

along the coast, were designated as "hinterland," and, inasmuch CHAP. as they were not "occupied" in the technical sense, they came to be spoken of as "spheres of influence" or "spheres of interest.' In the treaty of 1886 between Great Britain and Germany each state engaged not to make acquisitions of territory, or to accept protectorates, on the one or the other side of the conventional line adopted in the hinterland of the western coast. A second convention, entered into in 1890, delimited the frontiers of the hinterland of the eastern coast. In 1890 a dispute broke out between Portugal and Great Britain as the result of an endeavor on the part of the former to link together its eastern and its western African possessions. Claim was made to the territory adjoining Portuguese East Africa on the ground of cession from a native chief and of effective occupation, and to the adjoining western territory on the ground of prior discovery and the doctrine of "contiguity." Great Britain contested the claim on the basis of the exploration of the British South Africa Company, and the matter was finally adjusted by the treaty of 1891, leaving the disputed territory in the hands of Great Britain. By the close of the nineteenth century bilateral agreements between Great Britain, France, Italy, Germany, and Portugal had definitely settled the interior boundaries of their respective colonial possessions. It should be observed, however, that these treaties were legally binding only upon the parties to them, third states being free to set up separate claims to the particular territory. In the course of time the acquiescence of third states was to be implied, while acts of effective occupation have now come to confirm title by the rules of customary law.

accretion

Accretion as a mode of acquiring title to territory is of ancient c. Title by lineage, but of little practical consequence. It may be defined as the slow addition made to land by the action of rivers flowing past it or by the action of the ocean on the coast. The rules which govern it were taken from the Roman law by Grotius and his followers, and have remained practically unmodified to this day.

5

These "spheres of influence" or "spheres of interest," which look to an ultimate annexation of the territory thus marked off, are to be distinguished from such spheres of influence as were defined by Great Britain and Russia in the treaty of 1907 for their respective exploitations in Persia. See below, p. 312. In the latter case the object was more economic than political, and apparently did not contemplate ultimate annexation.

'See Westlake, International Law, 2nd ed., I, 130.

8 Bonfils, Droit International, § 559.

4

• Ibid., § 560.

"See De Jure Belli et Pacis (Eng. trans.), Bk. II, Chap. VIII.

CHAP. XIV

d. Title by prescription

The principle of accessio cedat principali, the thing that is added to another follows the fortune of the principal thing, governs all the different forms which accretion takes. The addition may take the form of alluvion, which is the imperceptible increase which the material deposited by the waters of a river or by the ocean adds to the banks or shores. It may also take the form of deltas, which are triangular islands built up at the mouth of a river by the gradual deposit of silt; or again, it may take the form of islands. built up in the bed of a river. In each case the addition becomes the property of the owner of the mainland, though a difficulty may arise where the river forms the boundary between two states.1

Where islands are built up within the maritime belt of a state they have the effect of extending the maritime belt to an equal distance beyond the newly acquired territory, with corresponding extension of the jurisdiction of the state. This rule was applied by the British Court of Admiralty in the decision of the case of the Anna, a Spanish vessel captured by a British privateer near the mouth of the Mississippi River during the war between the two countries in 1805. The question presented to the court was whether the capture had been made within the territorial jurisdiction of the United States. The capture had been made outside the three-mile limit if measured from the Balise, a fort on the extreme point of the mainland, but within the maritime belt if measured from some little mud islands composed of earth and of driftwood "which form a kind of portico to the main-land." The court was of the opinion "that the right of territory is to be reckoned from those islands."

Prescription in international law may be defined as the acquisition of territory by an adverse holding continued through a long term of years. It presumes the existence, at least in theory, of an earlier title held by another. If the earlier title is an uncertain one, the adverse holding may be bona fide in its origin; if it is clear and definite, the adverse holding will be mala fide in its origin. In both cases the new title is acquired on the ground of a presumed abandonment of the territory by the original owner. Prescription in international law, as supported by Grotius and writers of the Grotian tradition, differs from the usucaption and prescription of the Roman law in having no fixed period at the end of which the title of the original holder may be presumed to have been aban

'See below, p. 248.

'5 C. Rob., 373 (1805). Scott, Cases, 195; Evans, 148.

3

2

XIV

doned. Grotius had in mind uninterrupted possession "going be- CHAP. yond memory," whereas Vattel was ready to recognize adverse possession as giving title if the owner had neglected his right or been silent about it during "a considerable number of years." The question of the time required to create a presumption of abandonment presented serious difficulties in the eighteenth century, and Vattel was so conscious of them that he laid stress upon the great advantage it would be "if neighboring nations would come to an agreement on the subject by means of treaties.' Other writers deny altogether the possibility of acquiring title by prescription ;* but in so doing they would appear not to be stating law, but to be defending morality against the facts of international life. There is, further, the academic question whether prescription is an original or a derivative mode of acquisition, some writers classifying it as derivative, on the ground that it is a title to property which previously belonged to another, others classifying it as an original mode of acquisition, on the ground that title is not derived from the former owner directly, but from certain facts created by the presumed abandonment of the territory by the former owner." The bearing of the question upon the realities of international life will appear presently.

Part played

by prescrip

tion in in

ternational

There can be no doubt that from one point of view the recognition of title by prescription is as important in international law as it is in the municipal law of the several states. Grotius saw law clearly that if controversies concerning kingdoms and their boundaries were not extinguished by lapse of time wars would be perpetuated, and therefore that it was "for the good of human society that governments should at some time be placed beyond the risk and doubt of controversy." Vattel became eloquent upon the necessity "for the sake of the peace and welfare of the human race . . . that sovereigns be not easily troubled in their possession and that after a great number of years, if their title has not been contested during all that time, it should be regarded as valid and indefeasible." The Supreme Court of the United States, apply

1 De Jure Belli et Pacis (Eng. trans.), Bk. II, Chap. IV, §§ I, VII, IX. Law of Nations (Eng. trans.), Bk. II, § 142.

Ibid., § 151.

Notably among the older writers, G. F. von Martens, Précis du Droit des Gens, §§ 70-71, and among the more recent, von Ullmann, Völkerrecht, § 92.

The student of the common law may make comparison with the legal fiction invented by English jurists that a title by prescription to incorporeal hereditaments rested upon an original grant.

Bk. II, Chap. IV, § VIII.

'Bk. II, § 147.

CHAP. XIV

e. Title by cession.

ing international law to a dispute between Rhode Island and Massachusetts, laid it down that "for the security of rights, whether of states or of individuals, long possession under a claim of title is protected." 1

Had prescription been limited to territory held in distant and hitherto unoccupied parts of the world where the original title was doubtful, title acquired by prescription might have been permitted to obtain legal validity without debate of any consequence. When, however, prescription was put forth as a desirable means of securing stability in international affairs by putting an end to the claims of a dismembered state, such as Poland, or by confirming the title of, for example, Austria to its Italian possessions, or the title of France to Alsace-Lorraine before 1870, it was met by an indignant denial, and it found itself confronted with the new doctrine of nationality, which swept aside old titles in international law with the same revolutionary hand that had swept aside the existing titles to land in France in 1793. Long continued possession by a powerful state seemed no ground of title to subject peoples whose silent acquiescence in their dispossession had been due chiefly to fear of contesting the will of a stronger power. It would appear, therefore, that prescription in international law could only play the effective part of quieting possession that it has played in municipal law, provided there were in existence a higher authority, having jurisdiction over such cases, to which the dispossessed party could make appeal. In the absence of such an authority, time might do no more than mark the perpetuation of injustice.

Title by cession in international law corresponds in a general way to title by deed of transfer in municipal law. Cession may be defined as the formal transfer from one state to another of the sovereignty over a definite area of territory. It is usually carried out by means of a treaty between the two parties, defining the territory to be transferred and fixing the conditions under which the transfer is to take place. These conditions vary widely, and they may include such matters as the status of the inhabitants of territory under the sovereignty of the new owner, the adjustment of the public debt of the ceded territory, the creation of servitudes upon the territory in favor of the ceding state, and other like stipulations. Whether these conditions are to be regarded as per

14 Howard, 591, 639 (1846). See also Virginia v. Tennessee, 148 U. S., 503 (1893). Scott, Cases, 252. In the above cases the doctrine of prescription was applied to houndaries originally fixed by agreement, but subsequently giving rise to question as to their validity.

XIV

sonal obligations assumed by the assignee state, or as covenants CHAP. running with the land, following the distinction made by the common law, is of only incidental interest in international law, since there is no difference of procedure for a suit in rem and a suit in personam. It is important, moreover, not to confuse the international law of cession with the provisions of the domestic constitutional law of the assignor or of the assignee state. As far as international law was concerned it was, for example, a point of no consequence whether the acquisition of the Philippines and of Porto Rico by the United States brought those territories under the protection of the law of the Constitution.1 International law recognized the transfer of sovereignty; constitutional law determined whether the new territory should or should not enjoy certain constitutional privileges.

cession

The treaty by which transfer of sovereignty is effected may take Forms of one or another of several forms. The simplest of these, in point of law, is the treaty of sale, which has figured so prominently in the history of the United States. The Louisiana Purchase of 1803, the Florida Purchase of 1819, the Gadsden Purchase of 1853, the Alaska Purchase of 1867, and more recently the purchase of the Danish West Indies in 1916, in addition to several lesser purchases, make the record of the United States, in respect to expansion by purchase of territory, unique in the history of international law. A second form of transfer is the exchange of one area of territory for another, of which there are recent instances in the cession by Rumania to Russia in 1878 of a part of Bessarabia lying north of the Danube in exchange for the Dobrudja south of the Danube, and in the cession by Great Britain to Germany in 1890 of the island of Helgoland in exchange for territory adjoining German East Africa.

In addition to these normal business transactions may be mentioned such cases, rare in modern times, as the transfer of the Congo Free State in 1908 to Belgium by devise of King Leopold, who at the time of his death was sovereign of the Congo in his personal capacity as distinct from his position as king of Belgium. Here also may be mentioned the occasional free gifts made by one state to another, such as the cession in 1850 of a portion of the Horse-Shoe Reef in Lake Erie by Great Britain to the United States, on condition that the latter would erect upon it a light1 For the status of these territories following their cession by Spain, see Willoughby, Constitutional Law, I, Chap. XXX, and judicial decisions there cited.