of the Emperor of Germany, any prerogative or precedence over those princes.99 § 160. The usage of nations has established certain Maritime maritime ceremonials to be observed, either on the ocean ceremonials. or those parts of the sea over which a sort of supremacy is claimed by a particular State. Among these is the salute by striking the flag or the sails, or by firing a certain number of guns on approaching a fleet or a shipof-war, or entering a fortified port or harbor. Every sovereign State has the exclusive right, in virtue of its independence and equality, to regulate the maritime ceremonial to be observed by its own vessels towards each other, or towards those of another nation, on the high seas, or within its own territorial jurisdiction. It has a similar right to regulate the ceremonial_to be observed within its own exclusive jurisdiction by the vessels of all nations, as well with respect to each other, as towards its own fortresses and ships of war, and the reciprocal honors to be rendered by the latter to foreign ships. These regulations are established either by its own municipal ordinances, or by reciprocal treaties with other maritime powers. (a) Where the dominion claimed by the State is contested by foreign nations, as in the case of Great Britain in the narrow seas, the maritime honors to be rendered by its flag are also the subject of contention. The disputes on this subject have not unfrequently formed the motives or pretexts for war between the powers asserting these pretensions, and those by whom they were resisted. The maritime honors required by Denmark, in consequence of the supremacy claimed by that power over the Sound and Belts, at the entrance of the Baltic Sea, have been regulated and modified by different treaties with other States, and especially by the convention of the 15th of January, 1829, between Russia and Denmark, suppressing most of the formalities required by former treaties. This convention is to continue in force until a general regulation shall be established among all the maritime powers of Europe, [The great powers regard the assumption of royal titles as more than matter of etiquette, and as involving important relations and entailing serious consequences. They, therefore, make grave points of the recognition of such titles.] — D. (a) Bynkershoek, de Dominio Maris, cap. 2, 4. Martens, Précis du Droit des Gens Moderne de l'Europe, liv. iv. ch. 4, § 159. Klüber, Droit des Gens Moderne de l'Europe, Part II. tit. 1, ch. 3, §§ 117-122. according to the protocol of the Congress of Aix-la-Chapelle, signed on the 9th November, 1818, by the terms of which it was agreed, by the ministers of the five great powers, Austria, France, Great Britain, Prussia, and Russia, that the existing regulations observed by them should be referred to the ministerial conferences at London, and that the other maritime powers should be invited to communicate their views of the subject in order to form some such general regulation. (b)100 CHAPTER IV. RIGHTS OF PROPERTY. National § 161. THE exclusive right of every independent State proprietary to its territory and other property, is founded upon the rights. title originally acquired by occupancy, conquest, or cession, and subsequently confirmed by the presumption arising from the lapse of time, or by treaties and other compacts with foreign States. Public § 162. This exclusive right includes the public propand private erty or domain of the State, and those things belonging property. to private individuals, or bodies corporate, within its territorial limits. Eminent § 163. The right of the State to its public property or domain. domain is absolute, and excludes that of its own subjects as well as other nations. The national proprietary right, in respect to those things belonging to private individuals, or bodies corporate, within its territorial limits, is absolute, so far as it excludes that of other nations; but, in respect to the members of the State, it is paramount only, and forms what is called the emi (b) J. H. W. Schlegel, Staats Recht des Martens, Nouveau Recueil, tom. viii. p. 73. liv. ii. ch. 15. Königreichs Dänemark, Theil I. p. 412. [100 This article has not been executed. On the subject of sovereign and maritime ceremonials, see also Phillimore's Intern. Law, ii. §§ 27-45. Mackintosh's Works, iii. 408. Heffter, Europ. Völker. §§ 194-197, 218. Ortolan, Règl. Intern. i. 316, 332, 345.-D. nent domain; (a) that is, the right, in case of necessity or for the public safety, of disposing of all the property of every kind within the limits of the State. § 164. The writers on natural law have questioned how Prescripfar that peculiar species of presumption, arising from the tion. lapse of time, which is called prescription, is justly applicable, as between nation and nation; but the constant and approved practice of nations shows that, by whatever name it be called, the uninterrupted possession of territory, or other property, for a certain length of time, by one State, excludes the claim of every other; in the same manner as, by the law of nature and the municipal code of every civilized nation, a similar possession by an individual excludes the claim of every other person to the article of property in question. This rule is founded upon the supposition, confirmed by constant experience, that every person will naturally seek to enjoy that which belongs to him; and the inference fairly to be drawn from his silence and neglect, of the original defect of his title, or his intention to relinquish it. (a)101 (a) Vattel, Droit des ural Law, ii. ch. 9, § 6. (a) Grotius, de Jur. tium, lib. iv. cap. 12. Gens, liv. i. ch. 20, §§ 235, 244. Rutherforth's Inst. of Nat- Bel. ac Pac. lib. ii. cap. 4. Puffendorf, Jus Naturæ et Gen- Inst. of Natural Law, i. ch. 8; ii. ch. 9, §§ 3, 6. "Sic qui rem suam ab alio teneri scit, nec quicquam contradicit multo tempore, is nisi causa alia manifeste appareat, non videtur id alio fecisse animo, quam quod rem illam in suaram rerum numero esse nollet." Grotius, in loc. cit. [14 The subject of international prescription is treated at great length by Phillimore. Intern. Law, i. §§ 255–260. He considers Klüber and Martens as denying to prescription any place in international law, and cites against them Grotius, Heineceius, Wolff, Mably, Vattel, Bynkershoek, Rutherforth, Wheaton, and Burke. The last writer (Works, ix. 449, letter to R. Burke, Esq.) calls prescription "the soundest, the most general, the most recognized title between man and man, that is known in municipal or public jurisprudence; a title in which not arbitrary institutions, but the eternal order of things, gives judgment; a title which is not the creature, but the master, of positive law:" and says that all nations have always had a prescription and limitation against each other." Still the question discussed by Phillimore is, rather, how far and in what manner the technical rules attending prescription in private law are to be applied between nations. It cannot be seriously doubted, that long-continued firm possession, especially if practically undisputed by force, is sufficient to create sovereign title, and to give to all attempts to subvert it the character of mere rebellion, if by subjects, or of attempted conquest, if by other nations. Where a nation has lost its separate existence by conquest, but has not submitted farther than overruling force required, and regains it in a reasonable time, it is remitted to its old status of independence, and allowed a continuous sovereign recognition. As to what is a reasonable time in such cases, it is generally said, that the lapse of time allowed Conquest and discovery confirmed by compact and the lapse of tine. § 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 |