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the existence of any right which may conflict with, and control it. An absolute title to lands cannot exist, at the same time, in different persons, or in different governments.
“ An absolute, must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognize the absolute title of the crown, subject only to the Indian right of occupancy, and recognize the absolute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians.”
THE OREGON TERRITORY.
(Wheaton's International Law, 3d. Ed. p. 220.)
The claim of the United States to the territory between the Rocky Mountains and the Pacific Ocean, and between the 420 degree and 54th degree and 40 minutes of north latitude, is rested by them upon the following grounds :
1. The first discovery of the mouth of the river Columbia by Captain Gray, of Boston, in 1792: the first discovery of the sources of that river, and the exploration of its course to the sea by Captains Lewis and Clark, in 1805–6; and the establishment of the first posts and settlements in the territory in question by citizens of the United States.
2. The virtual recognition by the British government of the title of the United States in the restitution of the settlement of Astoria or Fort George, at the mouth of the Columbia River, which had been captured by the British during the late war between the two countries, and which was restored in virtue of the 1st article of the treaty of Ghent, 1814, stipulating that “all territory, places, and possessions whatever, taken by either party from the other during the war,” etc., “shall be restored without delay.” This restitution was made without any reservation or exception whatsoever, communicated at the time to the American government.
3. The acquisition by the United States of all the titles of Spain, which titles were derived from the discovery of the coasts of the region in question, by Spanish subjects, before they had been seen by the people of any other civilized nation. By the 3d article of the treaty of 1819, between the United States and Spain, the boundary line between the two countries, west of the Mississippi, was established from the mouth of the river Sabine, to
certain points on the Red River and the Arkansas, and running along the parallel of 42 degrees north to the South Sea; His Catholic Majesty ceding to the United States “all his rights, claims, and pretensions, to any territories east and north of the said line; and” renouncing “ for himself, his heirs and successors, all claim to the said territories forever.” The boundary thus agreed on with Spain was confirmed by the treaty of 1828, between the United States and Mexico, which had, in the meantime, become independent of Spain.
4. Upon the ground of contiguity, which should give to the United States a stronger right to those territories than could be advanced by any other power. “If,” said Mr. Gallatin, “a few trading factories on the shores of Hudson's Bay have been considered by Great Britain as giving an exclusive right of occupancy as far as the Rocky Mountains; if the infant settlements on the more southern Atlantic shores justified a claim thence to the South Seas, and which was actually enforced to the Mississippi ; that of the millions of American citizens already within reach of those seas cannot consistently be rejected. It will not be denied that the extent of contiguous country to which an actual settlement gives a prior right, must depend, in a considerable degree, on the magnitude and population of that settlement, and on the facility with which the vacant adjacent land may, within a short time, be occupied, settled, and cultivated by such population, compared with the probability of its being occupied and settled from any other quarter. This doctrine was admitted to its fullest extent by Great Britain, as appeared by all her charters, extending from the Atlantic to the Pacific, given to colonies established then only on the borders of the Atlantic. How much more natural and stronger the claim, when made by a nation whose population extended to the central parts of the continent, and whose dominions were by all acknowledged to extend to the Rocky Mountains.”
The exclusive claim of the United States is opposed by Great Britain on the following grounds :
1. That the Columbia was not discovered by Gray, who had only entered its mouth, discovered four years previously by Lieutenant Meares of the British navy; and that the exploration of the interior borders of the Columbia by Lewis and Clark could not be considered as confirming the claim of the United States, because, if not before, at least in the same and subsequent years, the British Northwest Company had, by means of their agents, already established their posts on the head waters or main branch of the river.
2. That the restitution of Astoria, in 1818, was accompanied by express reservations of the claim of Great Britain to that territory, upon which the American settlement must be considered an encroachment.
3. That the titles to the territory in question, derived by the United States from Spain through the treaty of 1819, amounted to nothing more than the rights secured to Spain equally with Great Britain by the Nootka Sound Convention of 1790: namely, to settle on any part of those countries, to navigate and fish in their waters, and to trade with the natives.
4. That the charters granted by British sovereigns to colonies on the Atlantic coasts were nothing more than cessions to the grantees of whatever rights the grantor might consider himself to possess, and could not be considered as binding the subjects of any other nation, or as part of the law of nations, until they had been confirmed by treaties.
DELAGOA BAY, 1872.
(Hall's International Law., 3d. Ed., 119.)
"A SOMEWHAT recent controversy to which title by occupation has given rise turned mainly upon the effect of a temporary cessation of the authority of the occupying state. From 1823 to 1875, when the matter was settled by arbitration, a dispute existed between England and Portugal as to some territory at Delagoa Bay, which was claimed by the former under a cession by native chiefs in the first-mentioned year, and by the latter on the grounds, amongst others, of continuous occupation. It was admitted that Portuguese territory reached to the northern bank of the Rio de Espirito Santo, or English River, which flows into a bay, and that a port and village had long been established there. The question was whether the sovereignty of Portugal extended south of the river, or whether the lands on that side had remained in the possession of their original owners. England relied upon the facts that the natives professed to be independent in 1823, that they acted as such, and that the commandant of the fort repudiated the possession of authority over them. In the memorials which were submitted on behalf of Portugal, amidst much which had no special reference to the territory in dispute, there was enough to show that posts had been maintained within it from time to time, and that authority had probably been exercised intermittently over the natives. The area of the territory being small, and all of it being within easy reach of a force in possession of the Portuguese settlement, there could be little difficulty in keeping up sufficient control to prevent a title by occupation from dying out. There was, therefore, a presumption in favor of the Portuguese claim. The French government, which acted as arbitrator, took the view that the interruption of occupation, which undoubtedly took place in 1823, was not sufficient to oust a title supported by occasional acts of sovereignty done through nearly three centuries, and adjudged the territory in question to Portugal.” [The award in favor of Portugal was in substance, on the grounds of first discovery, in the 16th century, and of continued occupation and control of the territory in dispute.]
(Phillimore's International Law, 3d Ed., 368.)
“There was a dispute of long standing between France and England respecting Santa Lucia, one of the Antilles Islands. After the treaty of Aix-la-Chapelle (1748), the matter was referred to the decision of certain commissioners, and it was the subject of various State Papers in 1751 and 1754.
“ The French negotiators maintained, that though the English had established themselves in 1639, they had been driven out or massacred by the Caribbees in 1640, and they had, animo et facto and sine spe redeundi, abandoned the island; that Santa Lucia being vacant, the French had seized it again in 1650, when it became immediately, and without the necessity of any prescriptive aid, their property.
“ The English negotiators contended that their dereliction had been the result of violence, that they had not abandoned the island sine spe redeundi, and that it was not competent to France to profit by this act of violence, and surreptitiously obtain the territory of another state; and that by such a proceeding no dominium could accrue to them. The principal discussion turned, not upon the nature of the conditions of prescriptive acquisition, but upon the nature of the conditions of voluntary dereliction, by which the rights of property were lost, and the possession returned to the class of vacant and unowned territories." 1.
1 At the present time it is generally conceded that discovery alone is not enough to give title to territory ; it must be followed by actual occupation.
In regard to the extent of the interior country to which the occupation of the sea-coast gives title, the extravagant claim was put forward in some of the earlier charters, granting lands in North America, that such right extended from the Atlantic to the Pacific Ocean. A more reasonable rule was laid down by the United States commissioners, appointed to settle the boundary of Louisiana, namely, “that when any European nation takes possession of any extent of seacoast, that possession is understood as extending into the interior country, to the sources of the rivers emptying themselves within that coast, to all their branches, and the country they cover, and to give it a right in exclusion of all other nations to the same."
SECTION 4.-RECOGNITION OF INDEPENDENCE.
J. Q. ADAMS TO PRESIDENT MONROE, AUG. 24, 1818.
(1 Wharton's Digest, 121.)
“ THERE is a stage in such (revolutionary) contests when the party struggling for independence has, as I conceive, a right to demand its acknowledgment by neutral parties, and when the acknowledgment may be granted without departure from the obligations of neutrality. It is the stage when the independence is established as matter of fact, so as to leave the chance of the opposite party to recover their dominion utterly desperate. The neutral nation must, of course, judge for itself when this period has arrived ; and as the belligerent nation has the same right to judge for itself, it is very likely to judge differently from the neutral and to make it a cause or pretext for war, as Great Britain did expressly against France in our Revolution, and substantially against Holland.
“If war thus results, in point of fact, from the measure of recognizing a contested independence, the moral right or wrong of the war depends upon the justice and sincerity and prudence with which the recognizing nation took the step. I am satisfied that the cause of the South Americans, so far as it consists in the assertion of independence against Spain, is just. But the justice of a cause, however it may enlist individual feelings in its favor, is not sufficient to justify third parties in siding with it. The fact and the right combined can alone authorize a neutral to acknowledge a new and disputed sovereignty.” 1
1 In M Ivaine v. Coxe's Lessee, 4 Cranch, 212, the Supreme Court of the United States say : “ That the several states which composed this Union, so far at least as regarded their municipal regulations, became entitled, from the time when they