are virtually prohibitive may be laid on the competing products of other states. But, as a rule, each state has a right, subject to such drawbacks as it may impose, to send its products to other lands, and receive their products in exchange. No state can be permitted to fully isolate itself from the rest of the world. These rules are now recognized by all civilized states, though they have been only partially accepted in the East. It was not till the treaty of Nanking, in 1842, that trade between China and England was officially sanctioned by China, and then it was limited to five ports; nor was it until 1873 that ministers from Europe and the United States were diplomatically received in Pekin. Japan remained absolutely closed until 1853, and the first treaty executed by Japan was with the United States on July 29, 1858. § 149. In the middle ages it was not unusual for a sovereign to pledge or mortgage portions of his property to secure debts or dowries. This right, however, has not been of late years recognized. We are not Pledges and servitudes of national property. without modern instances, however, of servitudes or easements in its territory granted by one state to another. Such servitudes, it is true, cannot be enforced, as can similar claims when existing among private individuals; but they are of the nature of treaty duties, to be insisted on as are other treaty duties. As illustrations may be mentioned the navigation of certain rivers or canals; the non-fortification of certain points governing the territory of the other contracting party; the fishing (conceded to the United States and France) on the waters of Newfoundland.2 1 Infra, §§ 207, 421. 2 See on this topic, Hartmann, § 62. As illustrations of hypothecations may be mentioned that of Ramoken and Vlissingen by the Netherlands to England in 1585, and of Corsica by Genoa to France in 1768. An instance of servitudes is to be found in those cases in which states are held bound to receive and permit the transit of waters flowing from another state. Phill., op. cit., 389. As servitudes, also, "may be enumerated agreements that other nations shall have the right of transit over certain rivers or canals; agreements that certain obnoxious persons (e. g., pretenders to a throne) shall not be permitted to reside in an adjacent land; agreements (as in the case of Dunkirk) that certain fortifications should be destroyed; agreements that certain garrisons should be kept in certain places." Phill., op. cit., 391. Servitude implied in tion. 150. Instances have been elsewhere noticed of the neutralization of territory by treaty. An interesting illustration of this is to be found in the treaty of April 19, 1850, between Great Britain and the neutralizaUnited States, providing for the neutralization of any railway or canal that may be constructed across the isthmus uniting North and South America. A convention of August 27, 1856, between the same powers, guaranteed the neutrality of the then proposed Honduras Interoceanic Railway. The neutrality of the Suez Canal, also, has been agreed to by all the parties concerned; and the neutrality of Luxemburg was guaranteed at a conference on May 11, 1866, between the leading European states, Luxemburg being required to destroy its fortifications and maintain a neutral attitude to all other states. IV. ACQUISITIONS OF TERRITORY. § 151. The modes of acquiring new territory may be Modes of (1) By conquest, e. g., the partitions of Poland; acquiring. the absorption of Silesia by Prussia; the conquest of Italy by Sardinia, of Alsace by France, of California by the United States. (2) By occupation, as was the case with America and Australia. (3) By accession (accretion), as where the soil of a state is increased by deposits from the waters by which it is bounded. (4) By annexation through treaty or otherwise, as was the case with the annexation of Savoy by France, and of Louisiana, Florida, Texas, and Alaska by the United States. Whether a territory can be transferred from one sovereign. to another, without the assent of the population of the territory transferred, has been much discussed. It has been maintained that such assent is necessary; but such has not been the practice. No such vote was taken on the cession of Florida, Louisiana, or Alaska to the United States; on the cessions involved in the treaties which determined the north 1 Lawrence's Wheat., i. 478; Phill., op. cit., i. 309 et seq. east and the northwest boundaries between the United States and England; on the cessions made in the Vienna Congress in the treaty between Prussia and France in 1871, and in that between Russia, Turkey, and other powers, in 1878. That the supreme power of the state, duly authorized to make treaties, can, without the consent of the ceded population, make such a transfer, is no longer questioned even in the United States.1 And in any case, whatever may be the right view with regard to territories with a settled population capable of acting intelligently in respect to such cession, consent cannot be necessary when there is no such population to be consulted. No one, for instance, would attempt to impeach the cessions of Louisiana, of Florida, of California, and of Alaska to the United States, on the ground that the consent of the inhabitants of the ceded territory was not obtained.2 § 152. As between two conflicting sovereigns land formed by accession belongs to the adjacent territory, and this is 1 Supra, § 134; see Phill., op. cit., i. 372, where the annexation of Norway to Sweden in 1814 is censured. 2 According to Grotius, the modes of acquisition of territory are as follows:(1) Occupatione derelicti, or occupation of desert or savage land, and accession. (2) Pactionibus, or treaty. (3) Victoriae jure, or conquest. To constitute title by occupation based on discovery, the occupation must be (a) authorized by the state claiming to benefit by it, and (b) must be permanent. When a settlement is thus made, it gives title to all the territory necessary for the due enjoyment and protection of the settlement. Thus, supposing there are no conflicting claims based on prior permanent occupancy, a permanent settlement of unoccupied land at the mouth of a river gives title to all the territory which that river and its tributaries wash. Supposing there is a conflicting "1. When it was previously unoccupied by any other than a savage nation; "2. When the nation which previously occupied it has, without ceding it, renounced the sovereignty which it exercised over it, either expressly, or by abandoning the territory; or, "3. When the inhabitants of the territory overthrow their government and freely join themselves to the occupying nation." The question as to whether the title of the settlers of this country is by discovery or conquest is noticed, supra, § 64. clearly the case with regard to the accession of soil on the banks of ocean or river, and the emerging of islands a short distance from the shore. When a river divides two states, the following rules, based on the determinations of the Roman law in questions of alluvion may be accepted: Land formed by accession adjacent belongs to territory. 1. When a river channel is left dry, the channel is to be divided between the states holding title to the banks. 2. A division on the same principle is to be made of islands emerging in the middle of a river. 3. But if not in the middle, then the island belongs to the state holding title to the nearest bank." Prescrip § 153. That prescription, and that for a comparatively short period, may give title to a de facto government there can be no question. Louis Napoleon was recognized tion may as emperor in England almost immediately after the give title. coup d'état; and the German government, after the conclusion of the war of 1870, treated, as permanently established, the first French administration that was able to make a treaty which would be likely to bind. Much more difficult are the questions which may arise when a particular territory is in dispute between two sovereigns, and when one sets up prescription. The great preponderance of opinion is to the effect that long undisturbed possession by a sovereign of a particular piece of territory gives him a strong prima facie claim to such The Anna, 5 Rob. Ad. 332; Bluntschli, § 295. See as to distinctive view in this country, supra, §§ 22 et seq. 2 See Phil., op. cit., 342 et seq. In Mr. Field's International Code the distinctions are thus put: "§ 43. When land is formed on the shore from artificial causes or by perceptible degrees, the boundary between the adjoining nations is not changed thereby. "§ 44. If a considerable and distinguishable part of the shore is carried away by the water, to a place within the boundaries of another nation, the nation owning it while attached to the shore may reclaim it within one year, if it can be restored to the territory of the nation so claiming it; but until it is so restored it must be deemed to be part of the territory within which it is situated. "§ 45. An island, formed from natural causes in any water other than the sea, belongs to the nation within whose boundary it is formed; or, if it is formed upon the boundary of two or more nations, each nation owns so much of the island as lies within its original boundary." territory. "The general consent of mankind," says Mr. Wheaton, "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; since none can safely disregard it without impugning its own title to its possessions, and since it is founded on general utility, and tends to promote the general welfare of mankind." Cession does not divest old laws. § 154. The mere cession of a territory by one sovereign to another does not, until otherwise ordained, unseat the old laws of the ceded territory. When territory is ceded by treaty, rights of property under it are not determined until there has been ratification.3 And until possession is taken under a cession, the prior authorities retain police functions, though technically sov ereignty ceases when the cession is complete. And full sovereignty does not pass until delivery. After delivery the relations of the inhabitants of the ceded territory to their former sovereigns are dissolved, but not their relations to each other." Titles to property are not affected by the cession." 1 Wheaton, i. c. 114, § 5, adopted by Phillimore, op. cit., 365. Sir R. Phillimore also cites a striking passage from Burke's Reflections on the French Revolution, where Burke declares prescription to be "the soundest, the most general, the most recognized title between man and man that is known in municipal or in 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; a title which, though not fixed in its term, is rooted in its principles in the law of nature itself, and is, indeed, the original ground of all known property; for all property in soil will always be traced back to that source, and will rest there." Where, however, a nation which has been conquered by another, throws off the yoke before it has been permanently fastened by prescription, then, by what is called postliminium, the nation thus reasserting its independence is entitled to resume its old national place. As to jus postliminii, see infra, § 223. 2 See supra, § 64; Hall's Int. Law, 78-9. 3 Haver v. Yaker, 9 Wall. 32. 4 U. S. v. Reynes, 9 How. 127; see Calvin's Case, 7 Rep. 17; Strother v. Lucas, 12 Pet. 410. 5 The Fama, 5 Rob. Ad. 97. 211. Ibid., U. S. v. Repentigny, 5 Wall. 1 Strother v. Lucas, 12 Pet. 411; Leitensdorfer v. Webb, 20 How. 176. |