[present day that a right by Occupation is strictly limited to the case of land absolutely uninhabited, and that in the case of colonising an already inhabited country, annexation of territory can only take place by interposing the fiction of a spontaneous cession on the part of persons representing the government of the native inhabitants. It is well known that the government of the United States has persistently-in practical accord with what is somewhat misleadingly called "the Monroe doctrine"-resisted the foundation of any fresh European colony on the American continents.* With respect to occupation of territory, either never inhabited or relinquished by its inhabitants, the maxims of Roman law-which (in this case as generally) are coincident with good reason-apply, that actual possession must be taken, and there must be a real intention to appropriate.

Treaties of Cession are either made at the close of a war-since no property passes by the mere act of conquest, where they form part of the treaty of peace; or they are made during peace for the purpose of adjusting boundaries, of making mutually advantageous exchanges or sales, or of strengthening a weak State by uniting its territory to that of a strong one, and thereby creating a fresh aggregate State.

It sometimes happens that a State finds it convenient or necessary to burden its territory with some temporary liability in favour of another State, and such a burden has been likened to a servitude or easement created in favour of that State. Here again the peril of an insufficient analogy has to be guarded against, lest untrue deductions be rashly drawn from premises too readily admitted.

[* A full account of the controversy arising out of President Monroe's message to Congress in 1823 will be found in Dana's note to his edition of Wheaton's "Elements," Part II. chap. I. See also Woolsey, § 47, and as to the general principle, Heffter, § 71.]

[Thus it has not been infrequent for a State to engage with another adjoining State that the armies of that State shall have a right of passage over its territory, or that its straits and inland seas shall be open for navigation, or that certain rights of free passage or postal communication shall be guaranteed to the citizens of the other State. As might have been expected, such engagements have been most common in the transactions between the States of Germany, though most of the great treaties by which the mutual relations of the leading States of Europe have been from time to time ascertained and settled present instances of them. The method usually resorted to of determining the boundaries between the territory of adjoining States is that of reference to a mixed commission, or to a single arbitrator. A recent instance of a reference of a boundary dispute to a single arbitrator is supplied by the Treaty of Washington, made between the United States and Great Britain in 1871, by the 34th Article of which a boundary question, referred by a former treaty to commissioners, who found themselves unable to agree, was again referred by them to the "arbitration and award of his Majesty the Emperor of Germany." His Majesty has since published

his award.

Besides its rights in respect of its territory, a State is held to have certain inherent rights in respect of its ships of war and its citizens.

*

It is sometimes said that a ship of war, and even a merchant ship, is part of the territory of the State to which it belongs, and a claim of what is called "exterritoriality" is sometimes set up, on this ground, on behalf of a ship of war in a foreign port. These expressions, based on a delusive analogy, are never very serviceable, and in the present case the fiction is equally

[* See the authorities on the different sides of the argument in the letter of Historicus (Sir W. Harcourt) on the "Territoriality of the Merchant Vessel," Macmillan, 1863.]

[transparent and worthless. It is a matter of obvious comity, if not of law (and this point cannot be regarded as settled), for every State to open its harbours at all times to the ships of war of every other friendly State; but the better opinion seems to be that the State, to the harbour of which a ship of war of another State has betaken itself, has no criminal jurisdiction over the persons in that ship in respect of offences committed on board the ship. In this is said to be the difference between the situation of a ship of war and a merchant ship, though this difference, so far as it operates to the prejudice of a merchant ship, is not insisted on by all States.*

It need scarcely be noticed, that if a State is bound up ideally as well as physically with its territory, it is still more closely bound up with the personality of its citizens. Every State is legally bound to protect from violence, at least to the extent to which it affects to protect its own citizens, the citizens of another State whom it may have invited either tacitly or expressly to travel or sojourn in its territory. It cannot be said that a State is compelled to admit the citizens of other States within its dominions, though it would be a serious discourtesy, calling for special explanation, and possibly for retortion, to refuse to one State what was accorded to others. Nor is a State legally responsible if it thinks fit to take exceptional precautions, as by insisting on passports and the like, in order to exercise a special police surveillance over such foreigners as may pass its frontiers or arrive in its ports. Nor again is a State bound to place foreigners on an equal civil and political footing with its own citizens, or absolutely to guarantee them against such accidents and miscarriages of justice as cannot but occasionally befall citizens and foreigners alike. All that a State is bound to shew is an honest

[ The leading cases are given in some detail in Wheaton's "Elements," Part II. ch. II.]

[and determined intention to protect the life, property and liberty (within such limits as this last is generally accorded in the country) of every foreigner sojourning in its territory, so long as he conducts himself in a manner conformable to law. This topic is one of considerable importance, as ill-treatment of foreigners is peculiarly apt to generate sentiments of irritation between States, and so to be the preliminaries of war. The principles, however, applicable to the subject are now well ascertained and placed beyond dispute.

An obvious right enjoyed by every State equally is the claim to have an equal share in the enjoyment of such things as are in their nature common to all, whether from not being susceptible of appropriation, or from not having been as yet, in fact, appropriated. Such a thing, pre-eminently, is the open sea, whether treated for purposes of navigation or of fishing. A celebrated controversy at one time prevailed as to whether a narrow sea, such as the "Straits of Dover," could, in any sense, be said to be susceptible of appropriation by either of the States the territories of which form its two coast lines. Grotius in his "Mare Liberum," and Selden, afterwards, in his "Mare Clausum," supported the opposite sides in this controversy. The allegation of Grotius, directed chiefly against the claims of the Portuguese, that the high seas cannot be appropriated in any sense, has finally prevailed.

Nevertheless, for some limited purposes, a special right of jurisdiction and even (for a few definite purposes) of dominion, is conceded to a State in respect of the part of the ocean immediately adjoining its own coast line. The purposes for which this jurisdiction and dominion have been recognised are-(1) the regulation of fisheries; (2) the prevention of frauds on customs' laws; (3) the exaction of harbour and light

Chouse dues; and (4) the protection of the territory from violation in time of war between other States. The distance from the coast line to which this qualified privilege extends has been variously measured, the most prevalent distances being that of a cannon-shot or of a marine league from the shore. By the British Hovering Act (9 Geo. 2, c. 35, s. 23) a jurisdiction of four leagues from the coast is assumed for certain revenue purposes, foreign goods not being allowed to be transhipped within that distance without payment of duties. In the case of bays, harbours, and creeks it is a well-recognised custom, provided the opening be not more than ten miles in width as measured from headland to headland, to take the line joining the headlands, and to measure from that the length of the distance of a cannon-shot or of a marine league. The limiting provision here introduced was rendered necessary by the great width of some of the American bays, such as the Bay of Fundy and Hudson's Bay, in respect of which questions relating especially to rights of fishing had arisen. At one time indeed the distance of six miles in place of that of ten miles was contended for. It is held that, in the case of straits or narrow seas less than six miles in breadth, the general jurisdiction and control is equally shared by all the States the territories of which form the coast lines, and that all the States are held bound, in times of peace at any rate, to allow a free passage at all times to the ships of war of all other States. The use and control of narrow seas is sometimes subjected to special limitations by treaty, as in the case of the Black Sea by the Treaty of Paris of 1856.

A peculiar class of rights in respect of the use of the open sea is that implied in the general jurisdiction which belongs to every State for the purpose of preventing and punishing outrages upon the rights of all States. Such an outrage, pre-eminently, is piracy.