cumstance, that all nations navigate where they will without regard to any exclusive claims. This circumstance seems rather to point to a prescriptive right of navigation. All nations being equal, all have an equal right to the uninterrupted use of the unappropriated parts of the ocean for their navigation. In places where no local authority exists, where the subjects of all states meet upon a footing of entire equality and independence, no one state nor any of its subjects, has a right to assume authority over the subjects of another (i). But Bynkershoek's main principle is, that the right of occupancy is commensurate with possession, and ceases only when possession is abandoned. But possession must be such as its purpose and the nature of the subject admit; and as he does not require for the possession of land, that the owner should incubate upon it like a hen, so neither could he require for the possession of a navigation, that the navigator should be inherent in his vessel like a Nautilus. the subjects of one or all states navigate as often as they have occasion, that must be sufficient to maintain one or all states in possession of the navigation; and if uninterrupted navigation from time immemorial were necessary, that is not wanting. The right of occupancy is founded upon the maxim-in pari jure potior est conditio possidentis-and no reason can be given why a state which is in possession of a navigation should be excluded by those who have no better title. Upon this principle it is laid down by Vattel, that where several nations have occupied a fishery, no one of them has a right to exclude the others (j); and fisheries are nothing more than a qualified possession of the sea for a special purpose.

If

Secondly, cession is a mode of acquiring title, which requires no explanation. It demands the union of possession and right, which occurs where one party having possession and right transfers both to the other, or where the party

(i) Le Louis, 2 Dod. 243.

(j) Vatt. i. § 287.

having right being dispossessed transfers the right to the party in possession, or has the possession restored to him. This subject will be more properly treated in connection with treaties which are the instruments of cession.

Thirdly, Prescription, in the strict sense of the word, as it implies some definite period of time, is the creature of civil laws (k). But the principle of prescription applies no less forcibly to national than to private possessions: as the quieting of titles is no where more important, than where sovereigns are concerned (7). It is, indeed, true as a principle, quod non valet ab initio tractu temporis non convalescit: yet in practice something different must be observed; a title, which may have been originally faulty, must of necessity become unimpeachable by great lapse of time (m). Hence, the greatest authorities agree, that national possessions may be prescribed for when length of possession has been accompanied with those circumstances which raise a presumption of right (n). Title by occupancy, as has been before stated, ceases with possession, and a new occupier acquires a title by occupancy (o). Length of possession raises a presumption of title, because it is not to be supposed that the former owner would allow another to be in possession, unless he had abandoned or ceded his right (p). Where a loss must fall upon one of two innocent parties, it is reasonable that it should fall upon him who has neglected his rights (7). Ignorance of the fact cannot be alleged between sovereigns, because national possessions are too notorious to be

(k) Vasq. apud Grot. Mar. Lib. vii.; Heinecc. Prælec. in Puff. i. 12, xv. (1) Grot. ii. 4, viii. 3; Puff. iv. 12, xi.; Vatt. ii. § 147.

(m) Per Sir W. Scott, The Molly, 1 Dod. 394; Vatt. i. § 266, 4.

(n) Grot. ii. 4, i.; Puff. iv. 12, ii.; Bynk. D. M. vi.; Heinecc. Prælec. in Puff. i. 12, xv.; Heineccius infers title by occupancy, where the authorities above cited support title by prescription. The distinction is merely verbal.

(0) Grot. ii. 3, xix.

(p) Grot. ii. 4, viii.; Vatt. ii. §§ 140, 146, 149.

(q) Vatt. ii. § 141.

unknown (r). Immemorial possession raises a conclusive presumption of title: a presumption juris et de jure, which admits of no proof to rebut it; for the right of possession must prevail until a better title is shewn, and immemorial possession is legally presumed to have survived all proof of title on either side (s). But the conclusive effect of immemorial possession is not to be considered as resting upon a mere presumption of fact, but upon a peremptory rule of the law of nations, established by general usage as essential to the general peace (t). So a claimant of territory contracting with the sovereign in possession, as with the owner thereof, is taken to have abandoned his right (u). So a party concurring in any act, or authorizing or requiring it to be done, is taken to admit all that is necessary to give it validity (v). Thus the conclusion of a treaty is a recognition of sovereignty in the party with whom the treaty is made; for a treaty is an act of sovereignty. So of the reception of an ambassador (w). Hence, the Spanish ministers, in the passports given to the deputies of the United Provinces, at the congress of Munster, refused to style them ambassadors, as that would have been an acknowledgment of independence and sovereignty, which was to be one of the subjects of negotiation (x).

The proof which is required to support title by prescription varies with the nature of the subject prescribed for. On subjects where a general or a common use is to be presumed, the claim of private or exclusive property is against the general inclination of the law. With regard to rivers or the sea, such claim can only arise on portions of the sea, or on rivers flowing through different states. The law of rivers flowing entirely through one state is perfectly clear.

In the sea out of reach of cannon shot universal use is presumed. In rivers flowing through conterminous states a common use is presumed. Yet in both of these there may, by legal possibility, exist a peculiar property excluding the universal or common use. Portions of the sea are prescribed for: : so are rivers flowing through contiguous states (y).

In conterminous waters, accretions that arise imperceptibly accrue to the adjoining territory (z). But in the case of a violent avulsion of land, which is capable of being identified (a), or where parts of a territory are flooded by conterminous water (b), the former title continues. When a conterminous river is naturally or artificially diverted into a new course, the boundary follows the middle of its deserted channel (c). In the absence of any proof to the contrary the boundary is presumed to run along the middle of the conterminous water (d). But the banks on one side may have been first settled, by which the possession and property may have been acquired, or cessions may have take place upon conquests or other events (y). The general presumption bears strongly against such exclusive rights, and the title is a matter to be established by those claiming under it, in the same manner as all other legal demands, are to be substantiated by clear and competent evidence. The usual manner of establishing such a claim, is either by the express recorded acknowledgment of the conterminous state, or by the ancient exercise of executive jurisdiction, founded presumptively on an admission of prior settlement or of subsequent cession. Ancient jurisdiction is proved by formal acts of authority; by holding courts of conservancy of the navigation; by ceremonious processions to

(y) Twee Gebroeders, 3 Rob. 339.

(z) Grot. i. 3, xvi.; Vatt. i. §§ 268, 269.

(a) Vatt. i. §§ 268, 269, 275.

(b) Vatt. i. § 275.

(c) Grot. ii. 3, xvii.; Vatt. i. §§ 267, 269, 270, 277.

(d) Grot. ii. 3, xviii.; Vatt. i. § 266; Twee Gebroeders, 3 Rob. 353.

ascertain the boundaries in the nature of perambulations; by marked distinctions on maps and charts prepared under public inspection and control; by levying tolls; by exclusive fisheries; by permanent visible marks of power there established; by the appointment of officers specially designated to that station; by stationary guardships; by records and muniments, shewing that the right has always been asserted, and, whenever resisted, asserted with effect. This is the natural evidence which it is reasonable to require whenever a right is claimed against all general principles, and against the natural rights and limits of neighbouring states (e). The laying down of buoys and beacons is not in its nature to be considered as a necessary indication of territory; it may be a servitude, or it may be neither; it may be, that the navigation is one in which neighbours are much interested, and the owner comparatively little, and, therefore, content to leave the care and expense of it upon them (ƒ).

(e) Twee Gebroeders, 3 Rob. 336.
(f) Ibid.