CHAPTER IV.

TERRITORIAL INVIOLABILITY-NATIONAL POSSESSIONS.

CL. II.-A STATE, like an Individual, is capable of possessing property. The property of a State is marked by the same characteristics relatively to other States, as the property of Individuals relatively to other Individuals; that is to say, it is exclusive of all foreign interference and susceptible of free disposition (a).

This property consists of Things (corpora), and of Rights to things (jura); or, in other words, it consists of things divided into those which are corporeal or incorporeal, movable or immovable (res, bona, pecunia) (b). As in the case of Individuals, certain things belong by their nature so equally to every person, that they are incapable of being appropriated by any one person; so in the case of States, certain things

(a) Heffters, s. 64.

(b) "Cum pupillus a tutore stipulatur rem salvam fore, non solum quæ in patrimonio habet, sed etiam quæ in nominibus sunt, ea stipulatione videntur contineri."-Dig. lib. xlvi. t. vi. 9.

"In bonis autem nostris computari sciendum est non solum quæ dominii nostri sunt, et si bona fide a nobis possideantur vel superficiaria sint. que bonis adnumerabitur, etiam si quid est in actionibus, petitionibus, persecutionibus: nam hæc omnia in bonis esse videntur."— Ib. lib. 1. t. xvi. 49.

"Pecuniæ verbum non solum numeratam pecuniam complectitur: verum omnem omnino pecuniam, hoc est omnia corpora: nam corpora quoque pecuniæ appellatione contineri nemo est qui ambiget."-Ib.

178.

"Pecuniæ nomine non solum numerata pecunia; sed omnes res, tam soli quam mobiles, et tam corpora quam jura continentur."-1b. 222.

belong so equally to all communities, as to be incapable of being appropriated by any one of them (extra commercium-extra patrimonium).

All these Things and Rights taken together would be designated by the Roman law "universitas” (c). At present we are concerned only with that portion of this collective whole which relates to real or territorial rights, and more especially with the right which flows from the abovementioned characteristic of exclusiveness-namely, the Right of Territorial Inviolability.

CLI. A State in the lawful possession of a territory has an exclusive right of property therein, and no stranger can be entitled, without her permission, to enter within her boundaries, much less to interfere with her full exercise of all the rights incident to that supreme dominion, which has obtained from jurists the appellation of dominium

eminens.

CLII. No individual proprietor can alienate his possessions from the State to which they belong, and confer the property of, or the sovereignty over, them to another country (d). Whether and to what extent it may be competent to the sovereign of a territory to alienate any portion of it will be hereafter considered.

CLIII. This general principle of dominium eminens is applicable to all possessions, whether acquired, 1, by recent acquisition, through the medium of discovery and lawful occupation; 2, by lawful cession or alienation; 3, by conquest in time of war, duly ratified by treaty; or, 4, by prescription.

CLIV. National Territory consists of water as well as land; and, in order to examine carefully the former species of possession, we must consider whether, and to what extent,

(c) "Bonorum appellatio, sicut hæreditatis, universitatem quandam ac jus successionis, et non singulas res demonstrat."-Dig. lib. 1. t. xvi. 208.

(d) De Garden, Traité de Diplomatie, t. i. p. 387.

and under what limitations, the following waters may be the objects of national property and dominion:

1. Rivers and Lakes.

2. The Open Sea.

3. The Narrow Seas.

4. The British Seas.

5. The Straits.

6. Portions of the Sea.

CHAPTER V.

PROPERTY OF A STATE-RIVERS.

CLV. No difficulty can arise with respect to Rivers and Lakes entirely enclosed within the limits of a State; but questions of some difficulty have arisen with respect to rivers which are not so enclosed, but which flow through more than one State (a). The Roman law declared all navigable rivers to be so far public property that a free passage over them was open to everybody, and the use of their banks (jus littoris) for anchoring vessels, lading and unlading cargo, and acts of the like kind, to be incapable of restriction by any right of private domain (b).

CLVI. The navigable rivers, however, were classed, according to that law, among the "res publica," and not, as might appear from a superficial view, among the "res communes," as the sea was. Rivers were the public property of the State, not common to the whole world, like the ocean (c).

CLVII. It has been contended, that the principle of this law has been engrafted upon International Law, and that it is a maxim of that law that the ocean is free to all mankind, and rivers to all riparian inhabitants. So that the nation which possessed both banks of a river where it disembogued itself into the sea, was not at liberty to refuse the nation or nations which possessed the banks of the river

p. 207.

(a) Grotius, 1. ii. c. ii. ss. 12-14, p. 191; c. iii. ss. 7-12, (b) Inst. 1. ii. tit. i. ss. 1-5; Dig. 1. i. tit. viii. s. 5. (c) "Quædam enim naturali jure communia sunt omnium, quædam publica. . . . Et quidem naturali jure communia sunt omnia hæc: Aër, Aqua profluens, et Mare, et per hoc littora maris. . . . Flumina autem omnia, et Portus, publica sunt."—Inst. 1. ii. tit. i. ss. 1, 2.

higher up, from the use of the water, for the passage of vessels to the sea, and from the incidental use of the banks for the purposes mentioned above (d). The opinion of Grotius (e) seems to be in favour of this position; for he held that, though the property and domain over the stream belonged to the riparian States, "at idem flumen qua aqua "profluens vocatur, commune mansit" (f); and this upon two grounds: 1. Because this was one of the rights excepted and reserved, at the period when the right of property was introduced as a limitation upon the original community of possession, in which fiction this great man believed; but as the basis of this opinion clearly was and is now universally acknowledged to be a fiction, this reason, built upon the supposition of its being a truth, can be of no avail (g). 2. Because the use of rivers belonged to the class of things “ utilitatis innoxiæ ” (h), the value of the stream being in no way whatever diminished to the proprietors by this innocent use of them by others, inasmuch as the use of them is inexhaustible (i). Grotius, as it will be necessary to remark hereafter, appears to have considered the right of mere passage (jus transitus innoxii) by one nation over the domain of another-whether that domain was an arm of the sea, or lake, or river, or even the land-to be one of strict law, and not of comity; but his opinion is not founded upon any sound or satisfactory reason, and is at variance with that of almost all other jurists (j). For, the reason of the thing and the opinion of other jurists, speaking generally, seem to

(d) Wheaton's History of the Law of Nations, p. 502.

(e) Lib. ii. c. ii. s. 12 et seq. p. 191.

(f) Vattel, 1. i. c. x. ss. 103, 104; 1. i. c. xxiii. s. 292.

(g) So Vattel, t. i. l. ii. c. ix. s. 123: " -un reste de la communion primitive."

(h) Grotius, 1. ii. c. ii. s. 11.

(i) Vattel, t. i. l. ii. c. ix. s. 126: "Des choses d'un usage inépuisable." () Monsieur Eugène Ortolan, however, a modern French author, who writes with care, good sense, and perspicuity, agrees with Grotius. See Des Moyens d'acquérir le Domaine international ou Propriété d'Etat entre les Nations, etc. p. 30 (Paris, 1851).