第18章 TERRITORIAL RIGHTS OF SOVEREIGNTY.(1)

All the department of International Law with which I was occupied at theclose of my last lecturethe acquisition by a State of unappropriated territory;has been much influenced by the Roman LawWhat takes place may still bedescribed by the Roman phrase occupatioThe fundamental rule is the samein the original and in the derivative systemIn order that new lands maybe appropriatedthere must be physical contact with themor physical contactresumable at pleasurecoupled with an intention to hold them as your own.

The leading precedent in such cases is the controversy as to the statusof the Oregon territory and as to the mode in which that status aroseYouwill find it set forth at some length in all the modern international treatises,and more particularly in those of American writersNo dispute more nearlygave rise to a warThe interests at first at stake seemed to be merely thoseof competing fur companiesbut this impression has not been justified bythe eventThe whole position of the territories in dispute has been changedby the construction of two great railwaysThe Northern Pacific Railway hasopened up the fertile and wealthy lands which were claimed by the Americanson the southwhile on the north the lands claimed by Great Britain includethe Canadian province of British Columbiawhich has been practically incorporatedwith the Canadian Dominion by the construction of the Canadian Pacific Railway.

I should perhaps add that the facts in controversy were not altogether plain;but it is generally admitted that Captain Grayfrom whom the Americans claimedtitlewas the uncommissioned agent of a fur companywhile Captain Vancouver,upon whose discoveries the English claim was basedthough he assumed possessionof the territory for Great Britainnever took this step till he heard ofGray's observationThisafter what I have said of the principlesmay serveto show the difficulties of the question at issueIt was most wisely settledby a compromise embodied in the Treaty of Washington.

Here let me observe that one great question constantly arises upon theappropriation of territory by discovery or by occupationwhat area of landis affected by the necessary acts when they are properly completedSettlementsare usually first established upon coastsand behind them stretch long spacesof unoccupied territoryfrom access to which other nations may be cut offby the appropriation of the shore landsand whichwith reference to a populationcreeping inwards from the seamust be looked upon as more or less attendanton the coastWhat then in this case is involved in the occupation of a givenportion of shoreIt seems to be a settled usage that the interior limitshall not extend further than the crest of the watershedIt is also generallyadmittedon the other handthat the occupation of the coast carries withit a right to the whole territory drained by the rivers which empty theirwaters within its linebut the admission of this right is perhaps accompaniedby the tacit reservation that the extent of coast must bear some reasonableproportion to the territory which is claimed in virtue of its possession.

I said before that the proceedings of several European Powers give usreason to think that questions with regard to Sovereignty over new countriesacquired by occupation may again arisethough possibly not in the presentcenturyIt is to be observedhoweverthat hitherto the titlewhich hasbeen put forward to lands assumed by Germany and Franceby Spain and Italy,has very generally been made to rest upon the consent of the native indigenouscommunity occupying themor of some sort of Government to which they arein the habit of submittingThe question as to the degree in which the occupationof new land by a savage or barbarous tribe would bar occupation by civilizedsettlers is one of considerable antiquity and of much difficultyand theway in which it has been treated has not been generally thought to reflectcredit on civilized explorers or the states to which they belongedThereis no doubt that international practice started with the assumption thatthe native indigenous title might be neglected on the ground that the inhabitantsfound in the discovered countries were heathenRoman Catholic explorersand their sovereigns were satisfied with admitting that it was the duty ofstates taking possession of new territory to convert the inhabitants to theRoman Catholic form of ChristianityThe attempts of the Spanish Governmentto Christianise the Indians of Mexico and South America appear to have beenquite honestand the subsequent sufferings of the aborigines seem to beattributable to the civil institutions introduced from SpainIn Spainasin all continental European countriesat the day of Columbus and Cortezthere existed the corvee or obligation to labour gratuitously for the Stateon roads and other public worksand the corvee was transplanted to the newAmerican dependenciesThere was also in the mining provinces of NorthernSpain a considerable population who were bound to work at mining operationsfor the benefit of the proprietorsand whose status very nearly approachedthat of the slaveThis quasi-servile status was more widely extendedandwas even found in Scotland at the beginning of the last centuryIt was thereforehardly surprising that it was introduced into Spanish AmericaNorth andSouthwhere it brought about frightful crueltiesQueen Isabella of Castileappears to have been sincerely anxious to abate the cruelty of the Spanishforced labourbut she was assured by the missionaries thatwhen releasedfrom the obligations of cultivation and miningthe timid natives retreatedinto the wilds from the company of the Spaniards and lost their Christianity.