As every state is entitled to determine its own form of government, the identity and continuity of a state is not affected by any change therein (m). Nor is it affected by a national emigration to a new country (n); such as was practised by the German swarms, and was once contemplated by the Dutch. Nor in a monarchical government is it affected by the demise of the sovereign, for the heir is deemed to be one and the same person with his ancestor for all legal purposes (o). The public debts of a state are not affected by any change in the form of its government (p). Where a state is divided into distinct states, either by war or by mutual consent, the obligations to which it was liable are not affected by such division, and must be discharged either jointly or severally in rateable proportions (q). In like manner where two states are united, their several rights and obligations are not extinguished, but incorporated (r). Upon this principle, when Upper and Lower Alsace and other places, comprising two-thirds of a province, liable to a certain debt were ceded to France by the treaty of Munster; it was stipulated that France should pay two-thirds of the debt (s). The extinction of a state is not to be contemplated in modern times. The instances given by Grotius are furnished by the ferocity of the Greeks and Romans. It occurred, when a nation was expelled from its country and led into captivity, or where it was deprived of all independent authority and made a subject province (t).

The title which a state has to its territories may be acquired in three ways: First, by occupancy; Secondly, by cession; Thirdly, by prescription.

(m) Grot. ii. 9, viii. 1; Bynk. Q. J. P. ii. xxi. § 1.

(n) Grot. ii. 9, vii.; Puff. viii. 12, 1.

(0) Grot. ii. 9, xii.

(p) Grot. ii. 9, viii.; Puff. viii. 12, ii.; Heinecc. El. ii. 231.

(9) Grot. ii. 9, x.; Heinecc. El. ii. 231.

First, occupancy is the only original mode by which title to territory can be acquired (u); cession is a mere transfer of title; and prescription, or long possession only raises a presumption of title acquired by occupancy or cession. All things unappropriated are capable of being acquired by title of occupancy, which requires continued possession with an appropriating mind. Quod nullius est naturali ratione occupanti conceditur. Mere intention is not enough; the intention must be accompanied with possession, and the title continues only so long as possession endures (v). Continuance of possession by mere intention is a fiction of civil laws, and has no place in the law of nations. It is not to be understood, however, says Bynkershoek, that possession cannot be continued, unless a man carry his moveables on his back like a tortoise, or be in a state of perpetual incubation on his land, like a hen upon her eggs. The possession of land is continued so long as the owner continues to use it for the purposes to which it is naturally adapted. If he build on it, if he sow it and reap the crops, if he fence it and exclude others from possession, if he uphold his buildings,-by these and the like means his possession is continued in his absence (w). This doctrine may be illustrated by the rules of the civil law respecting things that were in common, which are founded on the same principles. If a man erected a building on the sea shore, he might maintain an action against any one who disturbed his possession. But if he allowed it to go to ruin, he could not disturb the possession of another who had erected a new building on the same spot (x). Hence, the discoverors of islands or continents not inhabited, or only partially in(u) Grot. ii. 3, iv. ; Puff. iv. 6, i. ii.; Heinecc. Prælec. in Puff. i. 12, vi.; Grot. Mar. lib. v.; Bynk. D. M. 1; The Fama, 5 Rob. 114.

(v) Grot. ii. 2, ii. v.—ii. 3, xi.—ii. 4, iii.; Bynk. D. M. 1; Puff. iv. 6, viii.

(w) Bynk. D. M. 1; Puff. iv. 6, iii.

(1) Papinian apud Bynk. D. M. ix., and Grot. ii. 3, xi., and Mar. Lib. vii.

habited by savages, acquire for their sovereigns an inchoate title by setting up a flag or other ensign of occupancy; but the title must be completed by actual possession, and is deemed to be abandoned if not so completed, in which case the land is open to a fresh occupant (y). Unoccupied lands within the territory of a state are not subject to occupancy, for they are deemed to be in the possession of the state or its grantees (z). Sea fisheries are subject to occupancy, and capable of exclusive possession (a). The sea within gun shot of the shore is occupied by the occupation of the coast (b). Beyond this limit maritime states have claimed a right of visitation and inquiry within those parts of the ocean adjoining to their shores, which the common courtesy of nations has for their common convenience allowed to be considered as parts of their dominions, for various domestic purposes, and particularly for fiscal or defensive regulations more immediately affecting their safety and welfare. Such are the English hovering laws, which, within certain limited distances more or less moderately assigned, subject foreign vessels to such examination (c). By the laws of the United States this right is claimed to the extent of four leagues from the coast; and the claim of the Portuguese to exercise the like right to the same extent for the protection of their colonial trade, was recognised by the Supreme Court (d).

The controversy respecting the freedom of the sea, if it ever possessed any practical importance, cannot in the present day be regarded in any other light, than as a mere legal curiosity. In practical result there is no material difference between the doctrines of Grotius and those of Bynkershoek.

(y) Grot.ii. 2, iv.—ii. 3, iv.; Puff. iv. 6, iv.; Vatt. i. §§ 207, 208, 209, 295. (z) Grot. ii. 2, iv.; Puff. iv. 6, iv.; Vatt. ii. § 86.

(a) Puff. iv. 4, vii. 8; Heinecc. El. i. 244; Vatt. i. § 287.

(b) Grot. ii. 3, xiii.; Bynk. D. M. 2; Vatt. i. § 289, 290; The Anna, 5 Rob. 385 (c); Kent Comm. i. 29.

(c) Le Louis, 2 Dod. 245.

(d) Church v. Hubbard, 2 Cranch, 234.

The discussion serves to display the logical acuteness of the latter; but it may be doubted whether the necessary consequences of his theory, which he was too acute a reasoner not to perceive and too fair a reasoner not to disclose, does not furnish a reductio ad absurdum in confutation of so much of his argument as maintains, that inland seas are still open to occupancy with all its exclusive effects. He argues that the sea, so far as it is not commanded by the coast and has not been reduced into possession, is still liable to appropriation by occupancy. After shewing that the fleets maintained by the Romans for that purpose, were sufficient to vest in them the sovereignty of the Mediterranean and British seas, he justly rejects the claims set up at different times, by the English to the British Channel; by Louis 14 to the Mediterranean; by the Venetians and Genoese to the Gulfs of Venice and Genoa; and by the Spanish and Portuguese to the Western and Eastern Oceans. These claims, if not all equally extravagant, were equally groundless; because they were never upheld after the manner of the Romans by an adequate fleet and uninterrupted possession. The ocean and the principal parts thereof, as the Atlantic, for example, he maintains to have been always unappropriated; being in their nature incapable of appropriation, because incapable of uninterrupted possession by adequate force.

But besides those parts of the ocean which adjoin the land, and are appropriated as accessory to the coast, that commands them: he maintains, that inland seas, including the Mediterranean, are still capable of appropriation though at present unappropriated. Hence it follows, that any one navigating the Mediterranean in a single vessel with an appropriating mind would acquire a title by occupancy so long as his navigation endured to so much of the sea as it comprised; and might repel by force and confiscate the vessels of any persons, who disturbed his possession (e).

(e) Bynk. D. M. iii. Dominii maritimi titulum diximus esse occupa

Such circumstances would hardly amount to a defence in an indictment for piracy. It is hard to understand, how those parts of the sea, which are unoccupied and not parcel of the territories of any state can be subject to appropriation, so as to exclude the right of navigation, which is exercised without intermission by all the world. The doctrine of the civil law, that the sea is not subject to servitudes is wholly inapplicable. The distinction of Heineccius seems to reconcile all material differences concerning this question. He holds, that the ocean is incapable of appropriation; but that parts of the ocean and narrow seas may be appropriated subject to the right of navigation (ƒ).

This distinction, however, must be supported on other grounds than those, upon which Heineccius rests it. He puts it upon the principle of the inexhaustible nature of the use, which would equally give a right of passage by land or by water over the territories of a sovereign without his consent and against his will (g). But it may be supported on the principles maintained by Bynkershoek. For if occupancy be capable of giving an exclusive and absolute right to seas and parts of the ocean for all purposes, much more must it be capable of giving a qualified right for a special purpose. Bynkershoek maintains, in opposition to Vasquez and Grotius, that the sea is not in its nature imprescriptible (h). But the fact of any prescriptive right, he says, is impugned by the cir

tionem. Hæc autem justa non est, nisi quæratur aut justo bello, aut navigatione maris, cujus possessio non occupata est vel derelicta. Unde si quis, vel unâ scaphâ occupet mare non occupatum et possessum prius, isque eâdem scaphâ domini animo, pergat navigare idem mare, non ille nisi injuriâ eo submovebitur, non secus ac si quis occupato post primam communionem fundo invitus depellatur. Ut quisque possidet, ita quominus possideat vim fieri veto: si deturbetur et injuriæ par sit poterit vim vi repellere.

(ƒ) Heinecc. El. ii. 277, (n); Prælec. in Puff. i. 12, 4—cf. Grot. ii. 3, xii.

(g) Bynk. D. M. ix.

(h) Bynk. D. M. vi.