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International Law: Territorial Rights of Sovereignty

International Law

by

Henry Maine

LECTURE IV.
TERRITORIAL RIGHTS OF SOVEREIGNTY.

All the department of International Law with which I was occupied at the close of my last lecture, the acquisition by a State of unappropriated territory; has been much influenced by the Roman Law. What takes place may still be described by the Roman phrase occupatio. The fundamental rule is the same in the original and in the derivative system. In order that new lands may be appropriated, there must be physical contact with them, or physical contact resumable at pleasure, coupled with an intention to hold them as your own.

The leading precedent in such cases is the controversy as to the status of the Oregon territory and as to the mode in which that status arose. You will find it set forth at some length in all the modern international treatises, and more particularly in those of American writers. No dispute more nearly gave rise to a war. The interests at first at stake seemed to be merely those of competing fur companies; but this impression has not been justified by the event. The whole position of the territories in dispute has been changed by the construction of two great railways. The Northern Pacific Railway has opened up the fertile and wealthy lands which were claimed by the Americans on the south, while on the north the lands claimed by Great Britain include the Canadian province of British Columbia, which has been practically incorporated with 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 Gray, from whom the Americans claimed title, was the uncommissioned agent of a fur company, while Captain Vancouver, upon whose discoveries the English claim was based, though he assumed possession of the territory for Great Britain, never took this step till he heard of Gray's observation. This, after what I have said of the principles, may serve to show the difficulties of the question at issue. It was most wisely settled by a compromise embodied in the Treaty of Washington.

Here let me observe that one great question constantly arises upon the appropriation of territory by discovery or by occupation: what area of land is affected by the necessary acts when they are properly completed? Settlements are usually first established upon coasts, and behind them stretch long spaces of unoccupied territory, from access to which other nations may be cut off by the appropriation of the shore lands, and which, with reference to a population creeping inwards from the sea, must be looked upon as more or less attendant on the coast. What then in this case is involved in the occupation of a given portion of shore? It seems to be a settled usage that the interior limit shall not extend further than the crest of the watershed. It is also generally admitted, on the other hand, that the occupation of the coast carries with it a right to the whole territory drained by the rivers which empty their waters within its line; but the admission of this right is perhaps accompanied by the tacit reservation that the extent of coast must bear some reasonable proportion to the territory which is claimed in virtue of its possession.

I said before that the proceedings of several European Powers give us reason to think that questions with regard to Sovereignty over new countries acquired by occupation may again arise, though possibly not in the present century. It is to be observed, however, that hitherto the title, which has been put forward to lands assumed by Germany and France, by Spain and Italy, has very generally been made to rest upon the consent of the native indigenous community occupying them, or of some sort of Government to which they are in the habit of submitting. The question as to the degree in which the occupation of new land by a savage or barbarous tribe would bar occupation by civilized settlers is one of considerable antiquity and of much difficulty, and the way in which it has been treated has not been generally thought to reflect credit on civilized explorers or the states to which they belonged. There is no doubt that international practice started with the assumption that the native indigenous title might be neglected on the ground that the inhabitants found in the discovered countries were heathen. Roman Catholic explorers and their sovereigns were satisfied with admitting that it was the duty of states taking possession of new territory to convert the inhabitants to the Roman Catholic form of Christianity. The attempts of the Spanish Government to Christianise the Indians of Mexico and South America appear to have been quite honest, and the subsequent sufferings of the aborigines seem to be attributable to the civil institutions introduced from Spain. In Spain, as in all continental European countries, at the day of Columbus and Cortez there existed the corvee or obligation to labor gratuitously for the State on roads and other public works; and the corvee was transplanted to the new American dependencies. There was also in the mining provinces of Northern Spain a considerable population who were bound to work at mining operations for the benefit of the proprietors, and whose status very nearly approached that of the slave. This quasi-servile status was more widely extended, and was even found in Scotland at the beginning of the last century. It was therefore hardly surprising that it was introduced into Spanish America, North and South, where it brought about frightful cruelties. Queen Isabella of Castile appears to have been sincerely anxious to abate the cruelty of the Spanish forced labour; but she was assured by the missionaries that, when released from the obligations of cultivation and mining, the timid natives retreated into the wilds from the company of the Spaniards and lost their Christianity. Many of you must be aware that the origin of negro slavery in South America has been traced to the substitution of a hardier race for the weakly native Indians, who were dying in multitudes. Perhaps it is only just to remark that, after nearly four centuries, the ill-reputed Spanish experiments have in the long run brought about a nearer assimilation of the white and colored races than has been seen in any other part of the world. There are some Spanish American Republics in which the whole community is virtually of Indian extraction and color.

In North America, where the discoverers or new colonists were chiefly English, the Indians inhabiting that continent were compared almost universally to the Canaanites of the Old Testament, and their relation to the colonists was regarded as naturally one of war almost by Divine ordinance. This view was first dissented from by an English sect to whom many experiments in the practical application of humanity are due -- the Quakers; and the agreements made with the Indians of Pennsylvania by William Penn satisfied the consciences of those whom he represented. Nay, further observation has shown a very decided tendency in the United States to admit that the land necessary for their subsistence should not be taken away from the North American Indians unless in some form or other sufficient provision be made for their subsistence by agriculture or by hunting. The purely legal doctrine is this: a very famous American judge, who did more than any other man to shape the early jurisdiction of the Supreme Court of the United States, laid down that the British title to American territory, which the Federal Government inherited, excluded the American Indians from all rights except the right of occupancy, and gave the Federal Government the power of extinguishing this right of occupancy by conquest or purchase. But the admission that enough land must be left for the subsistence of all savage natives is now generally made by all proprietors of new territory. As a rule, however, at the present moment the tribes or communities found on the lands which the European states have taken possession of, have passed the stage which the American Indians were in when Europeans first came into contact with them. Prince Bismarck has expressly declared that he regards the German annexations as following the example of the British East India Company. Here it is assumed that some organized community is found in possession of the land. After the annexation they retain whatever rights they possessed before, save only the right of having foreign relations with anybody they please.

Up to this point I have been speaking of the jurisdiction and authority claimed by sovereign states over certain definite portions of the earth's surface. The narrow limits of my course forbid my exhausting what is a very extensive subject. It will be more convenient, I think, that I should leave the remaining topics contained in the subject of Sovereignty over land, and that I should pass on to Sovereignty over water, treating it very briefly. As before, I merely note points of interest and difficulty which occur as I proceed. States in fact are in the habit of exercising or claiming sovereign authority over portions of the sea, over lakes and rivers, and over certain vessels belonging to them or to their subjects when lying in the water of the high seas or in water over which they exercise or claim jurisdiction.

The first branch of our inquiry brings us to what, at the birth of International Law, was one of the most bitterly disputed of all questions, the question of the mare clausum and the mare liberum -- sea under the dominion of a particular Power or sea open to all -- names identified with the great reputations of Grotius and Selden. In all probability the question would not have arisen but for the dictum of the Institutional Roman writers that the sea was by nature common property. And the moot point was whether there was anything in nature, whatever that word might have meant, which either pointed to the community, of the sea or of rivers, and also what did history show to have been the actual practice of mankind, and whether it pointed in any definite way to a general sense of mankind on the subject. We do not know exactly what was in tile mind of a Roman lawyer when he spoke of nature. Nor is it easy for us to form even a speculative opinion as to what can have been the actual condition of the sea in those primitive ages somehow associated with the conception of nature. The slender evidence before us seems to suggest that the sea at first was common only in the sense of being universally open to depredation. The sea of early Greek literature appears to have swarmed with pirates. But there is older evidence. There are some Egyptian inscriptions which appear to speak of piratical leagues formed among the small Mediterranean states for making descent on weak and wealthy maritime communities. There are some of the names recorded which may be identified with the ancient appellations of tribes subsequently famous; and one cannot avoid the suspicion that the famous war of Troy arose from an expedition of this kind, whatever other pretexts for it there may have been. Whatever jurisdiction may have been asserted probably did not spring from anything which may be called nature, but was perhaps a security against piracy. At all events this is certain, that the earliest development of Maritime Law seems to have consisted in a movement from mare liberum, whatever that may have meant, to mare clausum from navigation in waters over which nobody claimed authority, to waters under the control of a separate sovereign. The closing of seas meant delivery from violent depredation at the cost or by the exertion of some power or powers stronger than the rest. No doubt Sovereignty over water began as a benefit to all navigators, and it ended in taking the form of protection. Mr. W. E. Hall, in a very interesting chapter of his volume (Part ii. 2), has shown that International Law, in the modern sense of the words, began in a general system of mare clausum; the Adriatic, the Gulf of Genoa, the North Sea, and the Baltic, were all closed and were under authority, and England claimed to have precedence and to exercise jurisdiction of various kinds from the North Sea and the parts of the Atlantic adjoining Scotland and Ireland southwards to the Bay of Biscay. In all these waters the omission to lower the flag to a British ship would have been followed by a cannon shot. Thenceforward the progress of maritime jurisdiction was reversed -- from mare clausum to mare liberum. And the Sovereignty allowed by International Law over portions of the sea is in fact a decayed and contracted remnant of the authority once allowed to particular states over a great part of the known sea and ocean.

The causes which threw open a large number of maria clausa are not obscure. In the first place there was the opinion of some of the most respected and authoritative of the founders of International Law. For example, the strong opinion of Grotius, perhaps the most reverenced of all these writers, that the proper doctrine was that of the mare liberum. Next, and more especially, this opening of seas was brought about by the discovery of America and the passage round the Cape of Good Hope. The repugnance of the most adventurous states to the extravagant pretensions of Spain and Portugal was quickened and stimulated by the knowledge, that their title was founded in the main on a partition of the eastern and western oceans by an authority which the new maritime nations, the Dutch and the English, no longer reverenced -- the Pope. Thus the widely prevailing exclusive maritime Sovereignty of early days declined. The English claims dwindled to claims over territorial water close to the coast, and over portions of the sea interposed between promontory and promontory known as the King's Chambers, and over the whole of the narrow seas for ceremonial purposes; these last claims were once so serious that even Philip II of Spain was fired into by an English captain for flying his flag when he came into the narrow seas for the purpose of marrying our Queen Mary.

The language of the ordinance of Hastings, attributed to lying John, was even much stronger:

'If a lieutenant of the lying do encounter upon the sea any ships or vessels, laden or unladen, that will not strike or veil their bonets at the commandment of the lieutenant of the lying, he will fight against them of the fleet; if they be taken they be reported as enemies, and their ships and goods taken and forfeited as the goods of enemies.'

I have already spoken of the doubts entertained by English judges, and expressed in the 'Franconia' case, as to that jurisdiction over three miles or a league which is said to exist over territorial waters. If those opinions be examined, it will seem that the doubts chiefly rest on the fluctuations and differences of view as to the exact extent of territorial water which may be claimed under the general rule of International Law. In some cases the claim is identical with that of the international writers to Sovereignty for three miles over the water next adjoining the shores. In other cases the claim is larger. It is easy to understand these differences if we bring home to our minds that what took place was a renunciation of indefinite for definite claims, entailing generally a contraction of the extent of sea asserted to be within a given jurisdiction.

Another survival of larger pretensions is the English claim to exclusive authority over what were called the King's Chambers. These are portions of the sea cut off by lines drawn from one promontory of our coasts to another, as from the Land's End to Milford Haven. The claim has been followed in America, and a jurisdiction of the like kind is asserted by the United States over Delaware Bay and other estuaries which enter into portions of their territory. A more indefinite claim was advanced by British sovereigns to a larger extent of the water by the prohibition which they issued against the roving or, as the technical word was, the hovering of foreign ships of war near the neutral coasts and harbors of Great Britain. In more recent times what was known as the 'Hovering Act' was passed, in 1736, and this assumes for certain revenue purposes a jurisdiction of four leagues from the coast by prohibiting foreign goods to be transshipped within that distance without payment of duties. The United States here again have copied this provision, and in either country the statutory legislation has been declared by the courts of justice to be consistent with the law and usage of nations. The once extensive but now greatly diminished claims of Great Britain have not been exclusively of advantage to her. We have a trace of the amplitude of the old claim in the necessity which Great Britain has submitted to of great expenditure on the costly duty of lighting by lighthouses and in other ways a much larger extent of seaway than is clearly under her jurisdiction.

The jurisdiction of a state over a portion of the sea nearest its coasts, either as a fragment of ancient claims or under the rule of International Law, is often said to exist by virtue of a fiction under which water is treated as land. You will find on examining the opinions of the judges in the 'Franconia' case that the admissibility or otherwise of such a fiction fills considerable space in the arguments. Conversely, the full Sovereignty of a state over the portions of land which it includes, and which are covered by water, rivers and lakes, might be supposed to exist under the Law of Nature. But this apparent natural completeness of Sovereignty is limited, as is seen in one case which has had more than its share of attention from international writers. Wherever, as often happens in a river of great length, it passes through the territory of a considerable number of states, it has been asserted that each one of those states has a right of navigation to the sea; and it has even been claimed that wholly foreign states can navigate the river from its mouth up to any one of the co-riparian sovereignties. It is the fact that such a right as I hare described has been exercised in all great European rivers for many centuries, and I believe the reason to be one which every traveler along such a river as the Rhine will at once understand. The command of a portion of the river was not valued in former days for the purpose of obstructing or closing it: its advantage consisted in the tolls which were exacted from a vessel as it passed from one sovereignty to another, and the long rivers were burdened with obligatory payments of this kind down to the mouth. Of course the burden was excessively heavy on the Rhine owing to the number of semi-sovereignties or fractional sovereignties which abounded within the limits of the Empire. In one instance a portion of the Rhine was absolutely closed under a provision of the Treaty of Westphalia. The Scheldt, or passage through the Dutch territory at the mouth, was closed to every other co-riparian Power, and was free only to the Dutch themselves. There was some pretext for this exceptional rule, because no doubt this portion of the Rhine was mainly the work of Dutch industry, for the river enters there into the gigantic constructions which have been made by Dutch engineers and by Dutch laborers for the purpose of protecting or recovering the Dutch territory from the sea. The closing of the Scheldt was, however, never in favor with the international writers, and was for a great length of time strongly objected to. It has a gloomy celebrity, for it was the forcible opening of this passage by the French in favor of the Flemings and against the Dutch which led to the entrance of our own country into the war of the French Revolution.

Some writers on International Law have asserted that the innocent navigation, as the phrase runs, of a river circumstanced like the Rhine, existed by nature. This was controverter by the others, and the question is one of the great topics of argument in International Law. The discussion, as sometimes happens, has been much embarrassed by the use of terms of dubious meaning. Those who denied the right generally, allowed that there was an imperfect right to the privilege claimed. These terms 'perfect' and 'imperfect right' descend to us from the Roman Law, where an imperfect law is a law without a sanction. John Austin has examined these terms 'imperfect' and 'perfect law,' and asserts that in such cases the lawgiver, though he has indicated his intention, has forgotten or accidentally omitted to impose penalties on disobedience. Such a use of words is altogether out of place in International Law, because in that system there is never any direct sanction, since there is no common sovereign. Consequently 'imperfect law' and 'imperfect right' have gradually attained a different sense in later International Law. Sometimes the words were used to imply that it would be fair and reasonable to concede the liberty claimed, sometimes it seems to have meant that a state alleged to lie under an imperfect obligation may concede the privilege, but might consult its own convenience as to the method of concession. If this way of expressing the conflicting doctrines had always been followed, it is a not inconvenient basis for practically settling the question. Many states will acknowledge an imperfect duty which would refuse to allow a perfect right in any sense of the words.

On this basis, however, that of imperfect right, the passage of rivers has been largely regulated by treaty. The Rhine and the Elbe were placed under special regulations in 1814 and 1815, after the close of the great war, by which all the states along their banks had a right of access to the sea. In 1828 there began a violent dispute between England and the United States as to the power of navigating the St. Lawrence. The St. Lawrence is in point of fact the outlet by which the water of the great lakes or fresh-water inland seas escapes from the continent of America into the Atlantic. England claimed, as owner of the territory near the mouth, to close the St. Lawrence at pleasure, though she never exercised the power which she assumed. On the other hand, the United States, as sovereign owners of valuable territory abutting on some of the great lakes, assumed a free right of navigation to the mouth of the St. Lawrence. Both Powers claimed more than they hoped to obtain. The language of the English Foreign Office assumed that England had a perfect right to forbid the navigation of the river. The United States seemed to assert that the whole river was open to themselves, and perhaps to navigators of all civilized states. The controversy ended in 1854 much in the same way as the disputes about passage down the Rhine, and the principles here applied were shortly afterwards applied to the great rivers of South America. They were all thrown open, the Parana, the Uruguay, and the Amazons. This liberality perhaps was more due to an increased perception of the advantages of commerce than to the adoption of either one or other of the alleged rules of International Law. In all cases, however, the legal view of the matter is that the riparian states have assented to an arrangement based on an imperfect right.

I have spoken at the close of my last lecture of the intricate controversies in International Law which have a fiction for a base. Perhaps the fiction most celebrated among international lawyers is that of ex-territoriality. The fiction of ex-territoriality is in fact founded on a metaphor. A man in a foreign country or a ship in foreign waters is conceived as still within the limits of the original sovereignty to which he belonged. Sometimes, it has been said, the ship is conceived as a portion of the sovereign state floating about in the high sea or elsewhere. The word seems to have been originally used to describe the privileges of ambassadors in foreign states, and it describes them as vividly and on the whole as accurately as a metaphor can. The main drawback to the use of such metaphors in legal discussion is that men, and particularly lawyers, begin in time to conceive the metaphor as having an existence of its own, and they make it the starting point for new inferences which themselves are often metaphorical.

This peculiarity remarkably distinguished another employment of the figure of which I am speaking. The jurists of some nations contend that the ships of a state are ex-territorial when in the territorial waters of another state. This is again denied by others, and various very difficult questions have arisen in quite recent times through the ambiguity of the terms employed. We may take as an example of this the controversy which arose fourteen or fifteen years ago as to the duty of captains of ships of war in regard to fugitive slaves. Ships of the British Government were constantly lying in the territorial water of independent states in the Eastern seas; for example, in the Persian Gulf within the territorial water of Persia or within the territorial water of Turkey. If a Man-of-War lying in its territorial water was under the jurisdiction of the state to which the neighboring coast belonged, one treatment of a very difficult case was incumbent on her captain which would become wholly different if a ship-of-war remained within the territorial water of the state whose flag it was flying. This case was that of the fugitive slave escaping to a British Man-of-War. It frequently arose, for it was generally known among the populations near the coast that the English laws did not allow or pay any regard to the status of slavery. If the ship was within the law of the neighboring territory, there could be no question that the fugitive should be given up again to his master. On the other hand, if the ship were subject to the law of the country whose flag it sailed under, then it became the duty of the captain to carry away the fugitive and to put him on shore in some place where he would not be again reduced to slavery. Conflicting reports reached this country as to what was the practice in these seas, and a large commission, consisting chiefly of lawyers, was appointed for the purpose of determining the practice and deciding what the law ought to be. The discussions which followed may be compared with those in the 'Franconia' case for the number of topics of International Law which they included. In the long run the commission came to an agreement. Some of them thought that a British ship in Turkish water was for all purposes ex-territorial and under British Sovereignty. Others thought that it was for the time under the Sovereignty of the Turkish Government. But it was unanimously determined by the commissioners that, whichever view prevailed, a British officer could not lawfully be called upon to give up a fugitive in any case where the result of surrendering him would be to expose him to ill usage.

What I have said applies to Men-of-War, to public ships flying the flag of their own sovereign, but the fiction of ex-territoriality has had a wider scope than when applied to such ships. All through the great war at the beginning of the century the United States maintained that even private vessels ought to be considered as ex-territorial and as retaining the law of the country to which their owners belonged. This pretension was stoutly combated by Great Britain. The controversy really turned on one peculiar practice of the British Navy in those days. Being manned by impressments in its own country, its captains sought to supply insufficiency in their crews by examining the ships of neutral nations which they met, and taking out of them any sailors who were found to be of British nationality. They argued (and that this is the rule we shall see hereafter) that every private neutral ship on the high sea is liable to be searched in order that a belligerent vessel may be satisfied that there are no goods belonging to an enemy on board. For this purpose a British captain had the right of entering a friendly neutral ship; and being there lawfully, it was argued by the British lawyers and Courts that he could take away and remove to his own ship sailors engaged in the navigation of the neutral ship who were subjects of Great Britain. No dispute was ever more violent than this, and it led directly to the war between the United States and Great Britain which began in 1814. It is happily not probable that any such dispute will occur again, although there is no absolute impediment to its revival in the decisions of Courts or in law books. Impressment is now given up by the British Government, and if in some future war Great Britain is compelled to supply its ships with crews through compulsion, resort will almost certainly be had to some other expedient. It is not impossible that we may have to copy the system which is in force in France and Germany, of a conscription confined to the maritime population. It should also be borne in mind that in the Men-of-War of our day, which are machines of the highest elaborateness and delicacy, worked by steam and hydraulic power, the numbers of the crew relatively to the size of the vessel are much smaller than they were in the early maritime wars of the century, so that the probability of the ship being placed in real difficulty from the insufficiency of her crew is considerably diminished.

The extreme form of the fiction of ex-territoriality which the Americans put forward in respect of private ships is thus not likely to be advanced again, because the provocation which elicited it is very unlikely to recur; and indeed if an American proposal on which I shall have to say much hereafter, that all private property on the sea shall be exempt from capture, were to be adopted by the general agreement of nations, the ex-territoriality of merchant ships might possibly be expunged from International Law by international agreement, because the rights of visiting and searching neutral merchant ships in time of war would disappear of themselves. But it must be understood that at present this claim to ex-territoriality has never been formally negatived or set aside. The treaty between Great Britain and the United States which closed the war of 1814 says nothing on this subject or on the subject of the grievances which were the foundation of the claim, and I suppose that an American lawyer would be bound by the decisions of his own National Courts to assert it, at least abstractedly. What I have said, it will be seen, applies solely to private vessels. With regard to public vessels, Men-of-War, there is a much nearer approach to uniformity of practice and doctrine. On the whole, the position that a public ship flying the flag of the sovereign of an independent country is under the law of that country, even when in the territorial waters of another country, is accepted by the Courts and lawyers of the civilized world. But a distinction is drawn between acts of which the consequences begin and end on board the ship and take no effect externally to her, and acts done on board which have an external operation. In the first case the jurisdiction of the sovereign to whom the ship belongs is exclusive. In the second, the sovereign in whose waters the ship is lying may demand redress for the illegality, but it must be demanded from the Government which is Sovereign owner of the vessel. The cases may be illustrated by occurrences which have actually happened. One sailor on board a Man-of-War lying in territorial water shoots another; or a sailor fires a rifle from the deck of the ship and kills a native of the neighboring country. In the first case, the captain may deal at once with the offender as the law and usage of his own country permit. In the second, he must wait until a demand is made upon his sovereign. I have already mentioned the exceptional case of a fugitive slave taking refuge on board a foreign public ship in territorial water. The decision of the commissioners did not settle any principle, but established a working rule which is sufficient for the occasion.