Acquisition by transfer or cession is imperfect, until possession is taken by the nation receiving the transfer.

Compare Bluntschli, §§ 282, 296. He adds, that to make a cession valid, the inhabitants of the ceded territory must recognize the cession, and have the enjoyment of their political rights under the nation receiving the transfer.

Conquest.

48. Conquest includes any mode of obtaining possession of territory against the will of the power by which it was previously occupied.

Acquisition by conquest becomes complete by the continuance of peaceful possession.

See Bluntschli, § 290.

CHAPTER V.

PROPERTY AND DOMAIN.

ARTICLE 49. Capacity to have property.

50. Eminent domain.

51. Internal domain.

52. Prescription.

Capacity to have property.

49. Subject to its constitution and laws,' a nation has capacity to acquire, hold and dispose of:

2

1. Property not within the territorial limits of any other nation; and,

2. With the consent of any other nation, property within the territorial limits of such other nation.

1 The capacity to acquire real property may be limited or regulated by the organic law.

2 The property of a nation is of two kinds :

1st. Public property or public domain; that is, that kind which the government holds as a mere trustee for the use of the public; such as navigable rivers, highways, &c.; and,

2nd. Private domain, or domain of the State; that is, those things in which the nation has the same absolute property as an individual would have in like cases. Halleck, p. 123.

Eminent domain.

50. The power of a nation, by virtue of eminent domain, to take, or suspend the use of,' property within its territorial limits, for the public use, safety or welfare, extends to the property of foreign persons, states and nations.

Adequate compensation' must be made therefor, and, except in cases of immediate necessity, at the time of the interference.

1

By several treaties, the property of a foreigner cannot be taken, or his use thereof impeded or impaired by public authority, without adequate compensation for the interference.

12 U. S. Stat. at L., 1003.
15 Id., (Tr.,) 59.

Treaty between the United States and Bolivia, May 13, 1858, Art. III., Nicaragua, June 21, 1867, IX., The detention of a vessel in port by the President of the United States, under the Act of Congress, April 30, 1818, (3 U. S. Stat. at L., 447,) was held not a taking and use of private property for public purposes, within the meaning of the Constitution; but an arrest by due process of law. Court of Claims, 1866, Graham v. United States, 2 Court of Claims Rep., Nott & H., 327. Some of the treaties expressly require compensation in case of embargo, &c.; and the article, above, is accordingly extended to interferences with the use of property.

2 Articles condemned for violation of law, or because of adaptation to illegal uses,―e. g., burglars' tools, obscene publications, &c.,—are not to be regarded as property within such a rule as this.

Internal domain.

51. As against other nations, a nation is presumed to be the owner of all public, and all unappropriated, property within its limits,' and has a right to forbid any other nation from owning or holding any property within its territorial limits, except as otherwise provided in this Code,' or by special compact.

1 See Fiore, Nouv. Dr. Int., vol. 1, Lib. 2, chs. 1,2; Lawrence's Wheaton, p. 303, § 3.

2 See Chapter VI., on NAVIGATION.

Prescription.

52. The uninterrupted possession of territory or other property for fifty years by a nation, excludes the claim of every other nation.

Prescription is applicable to the title to national property. Rhode Island v. Massachusetts, 4 Howard's U. S. Sup. Ct. Rep., 639; Lawrence's Wheaton, p. 303, § 4.

Vattel suggests the propriety of fixing by agreement of nations a definite rule as to the number of years necessary to found a prescription. Law of Nations, B. 2, c. 11, § 151.

Phillimore questions the expediency and the possibility of so doing. Int. Law, Vol. 1, p. 272, note r.

Compare Dana's Wheaton, § 164, note 101.

TITLE II.

EXTRA-TERRITORIAL ACTION.

CHAPTER VI. Navigation.

VII. Discovery.

VIII. Exploration and Colonization.

IX. Fisheries.

X. Piracy.

CHAPTER VI.

NAVIGATION.

ARTICLE 53. Freedom of the "high seas."

54. Navigation of the high seas and other waters.

55. Rivers communicating with the sea.

Freedom of the "high seas."

53. The high seas are the ocean, and all connecting arms and bays or other extensions thereof, not within the territorial limits of any nation whatever.

No part of the high seas is the subject either of property, or of exclusive jurisdiction.'

1 Ortolan, Régles Int. et Dipl. de la Mer, v. 1, pp. 112, 120.

Navigation of the high seas and other waters.

54. The right to navigate the high seas and all other navigable waters not within the territorial limits of any nation whatever,' is common to all nations and their members; and except as provided in this Code, can be abridged or renounced only by actual consent."

As to

1 See Ortolan, above cited; and Bluntschli, §§ 304-307, 314, 316. 21 Phill. Int. Law, § CLXXIV.; Heffter, § 74, p. 148. Doubted by Hautefeuille, Droit des Nations Neutres, v. 1, p. 222. tacit consent arising from disuse, see Lawrence's Wheaton, 339–346, § 10. Rivers communicating with the sea.

55. A nation, and its members, through the territory of which runs a navigable river, have the right to navigate the river to and from the high seas, even though passing through the territory of another nation; subject, however, to the right of the latter nation to make necessary or reasonable police regulations for its own peace and safety.

Message of President Grant to the Congress of the United States, December, 1870; and treaties there cited.

Inland waters.

56. The right to navigate inland waters not communicating with the ocean by a natural channel, is common to every nation, whose territory borders thereon, and to its members.

Bluntschli, Droit International Codifié, § 316; 1 Phill. Int. Law, S CCIV. See provisions as to RIGHTS OF OCCUPATION, in the articles of Section II. of Chapter XXV., entitled PERSONAL RIGHTS OF FOREIGNERS.

Menacing armaments.

57. A nation may refuse to allow menacing armaments of another nation to enter or remain within its territorial limits.

Ortolan, Rég. Int. et Dipl. de la Mer; vol. 1, pp. 143, 145.

Some treaties fix a number as a limit,-three, four, five, or six ships at a time.

Military ports.

58. A nation may refuse to allow public or private ships of another nation to enter its purely military ports.

Ortolan, Reg. Int. et Dip. de la Mer, vol. 1, p. 145.