Chapter IX: Title by Settlement

Title by Settlement an imperfect Title.--Presumption of Law in its
Favour.--Made perfect by undisturbed Possession.--Wheaton.--Title by
Usucaption or Prescription.--Vattel.--Acquiescence a Bar to
conflicting Title of Discovery.--Hudson's Bay Settlements.--Treaty of
Utrecht.--The Vicinitas of the Roman Law.--Mid-channel of
Rivers.--Contiguity, as between conterminous States, a reciprocal
Title.--Negotiations between Spain and the United States of
America.--Vattel.--Territorial Limits extended by the Necessity of the
Case.--Right of Maritime Jurisdiction, how far accessorial to Right of
Territory.--Right of Pre-emption.--New Zealand.--North American
Indians.--Right of Innocent Use.

Title by settlement, like title by discovery, is of itself an imperfect title, and its validity will be conditional upon the territory being vacant at the time of the settlement, either as never having been occupied, or as having been abandoned by the previous occupant. In the former case, it resolves itself into title by occupation; in the latter, the consent of the previous occupant is either expressed by some convention, or presumed from the possession remaining undisputed. Title by settlement, however, differs from title by discovery, or title by occupation, in this respect,--that no second discovery, no second occupation can take place, but a series of settlements may have been successively made and in their turn abandoned, so that the last settlement, when confirmed by a certain prescription, may found a good territorial title. Again, the presumption of law will always be in favour of a title by settlement. "Commodum possidentis in eo est, quod etiamsi ejus res non sit, qui possidet, si modo actor non potuerit suam esse probare, remanet in suo loco possessio; propter quam causam, cum obscura sint utriusque jura contra petitorem judicari solet." (Inst., l. iv., tit. 15, Sec. 4.)

Where title by settlement is superadded to title by discovery, the law of nations will acknowledge the settlers to have a perfect title; but where title by settlement is opposed to title by discovery, although no convention can be cited in proof of the discovery having been waived, still, a tacit acquiescence on the part of the nation that asserts the discovery, during a reasonable lapse of time since the settlement has taken place, will bar its claim to disturb the settlement. Thus, Mr. Wheaton (part ii., chap. iv., Sec. 5) writes:--"The constant and approved practice of nations shows, that by whatever name it be called, the uninterrupted possession of territory or other property, for a certain length of time, by one state, excludes the claim of every other, in the same manner as by the law of nations, and the municipal code of every civilized nation, a similar possession by an individual excludes the claim of every other person to the article of property in question. This rule is founded upon the supposition, confirmed by constant experience, that every person will naturally seek to enjoy that which belongs to him; and the inference fairly to be drawn from his silence and neglect, of the original defect of his title, or his intention to relinquish it."

Title, then, by settlement, though originally imperfect, may be thus perfected by enjoyment during a reasonable lapse of time, the presumption of law from undisturbed possession being, that there is no prior owner, because there is no claimant,--no better proprietary right, because there is no asserted right. The silence of other parties presumes their acquiescence: and their acquiescence presumes a defect of title on their part, or an abandonment of their title. A title once abandoned, whether tacitly or expressly, cannot be resumed. "Celui qui abandonne une chose cesse d'en etre le maitre, et par consequent une chose abandonnee devient une chose qui n'est a personne." (Wolff, cciii.)

Title by settlement, then, as distinguished from title by discovery, when set up as a perfect title, must resolve itself into title by _usucaption_ or _prescription_. Wolff defines usucaption to be an acquisition of domain founded on a presumed desertion. Vattel says it is the acquisition of domain founded on long possession, uninterrupted and undisputed, that is to say, an acquisition solely proved by this possession. _Prescription_, on the other hand, according to the same author, is the exclusion of all pretensions to a right--an exclusion founded on the length of time during which that right has been neglected; or, according to Wolff's definition, it is the loss of an inherent right by virtue of a presumed consent. Vattel, writing in French, and observing that the word usucaption was but little used in that language, made use of the word _prescription_ whenever there were no particular reasons for employing the other. The same remark may be applied in reference to our own language, and thus this title is generally spoken of as _title by prescription_.

What lapse of time is requisite to found a valid title by prescription has not been definitely settled. The law of nature suggests no rule. Where, however, the claimant cannot allege undoubted ignorance on his part, or on the part of those from whom he derives his right, or cannot justify his silence by lawful and substantial reasons, or has neglected his right for a sufficient number of years as to allow the respective rights of the two parties to become doubtful, the presumption of relinquishment will be established against him, and he will be excluded by ordinary prescription. Lapse of time, in the case equally of nations as of individuals, robs the parties of the means of proof: so that if a _bona fide_ possession were allowed to be questioned by those who have acquiesced for a long time in its enjoyment by the possessors, length of possession, instead of strengthening, would weaken territorial title. This result would be so generally inconvenient, as to be inadmissible.

Thus, in regard to the territories of the Hudson's Bay Company, it was alleged in the negotiations preliminary to the Treaty of Utrecht, that the French had acquiesced in the settlement of the Bay of Hudson by the Company incorporated by Charles II. in 1663; since M. Fontenac, the Governor of Canada, in his correspondence with Mr. Baily, who was Governor of the Factories in 1637, never complained, "for several years, of any pretended injury done to the French by the said Company's settling a trade and building of forts at the bottom of the bay." (General Collection of Treaties, &c. London, 1710-33, vol. i., p. 446.) The King of England, it is true, in his charter had set forth the title of the British Crown, as founded on discovery: the title by discovery, however, required to be perfected by settlement; and thus, in the negotiations, the subsidiary title by settlement was likewise set up by the British Commissioners, and the acquiescence of the French was alleged, either as a bar to their setting up any conflicting title by discovery, or as establishing the presumption of their having abandoned their asserted right of discovery.

What amount of _contiguous_ territory attaches to a settlement, so as to prevent the titles of two nations from conflicting by virtue of adjoining settlements, seems to be governed by no fixed rule, but must depend on the circumstances of the case. Vattel observes (l. ii., Sec. 95,) "If, at the same time, two or more nations discover and take possession of an island, or _any other desert land without an owner_, they ought to agree between themselves, and make an equitable partition; but, if they cannot agree, each will have the right of empire and the domain in the parts in which they first settled." The title of _vicinitas_ was recognised in the Roman law, in the case of recent alluvial deposits, as entitling the possessor of the adjoining bank to a claim of property; but, if it were an island formed in the mid-channel, there was a common title to it in the proprietors of the two banks. "Insula nata in flumine, quod frequenter accidit, si quidem mediam partem fluminis tenet, communis est eorum, qui ab utraque parte fluminis prope ripam praedia possident, pro modo latitudinis cujusque fundi, quae latitudo prope ripam sit: quod si alteri parti proximior est, eorum est tantum, qui ab ea parte prope ripam praedia possident." (Inst. ii., tit. i., Sec. 22.) So, in the case where a river abandons its former channel, the ancient bed belongs to those "qui prope ripam praedia possident;" and in the Digest (xli., tit. i., l. 7,) we have a case supposed where a river has changed its course, and occupied for a time the entire property (totum agrum) of an individual, and then deserted its new channel: the Roman law did not consider that, strictly speaking, the title of the former proprietor revived, inasmuch as he had no adjoining land. "Cujus tamen _totum agrum_ novus alveus occupaverit, licet ad priorem alveum reversum fuerit flumen; non tamen is, cujus is ager fuerat, stricta ratione quicquam in eo alveo habere potest: quia et ille ager, qui fuerat, desiit esse, amissa propria forma: et quia vicinum praedium nullum habet, non potest _ratione vicinitatis_ ullam partem in eo alveo habere."

Again, in the case of a river, the banks of which are possessed by contiguous states, the presumption of law is, that the _Thalweg_, or mid-channel, is the mutual boundary; since rivers are, in the case of conterminous states, _communis juris_, unless acknowledged by them to be otherwise, or prescribed for by one of the parties. "The general presumption," observes Lord Stowell, (in the Twee Gebroeders, 3 Rob., p. 339,) "certainly bears strongly against such exclusive rights, and the title is matter to be established on the part of those claiming under it, in the same manner as all other demands are to be substantiated, by clear and competent evidence."

A title by contiguity, as between conterminous states, would thus appear to be a reciprocal title: it cannot be advanced by one party, excepting as a principle which sanctions a corresponding right in the other. The practice is in accordance with this. Thus, the United States of America, in its discussions with Spain respecting the western boundary of Louisiana, contended, that "whenever one European nation makes a discovery, and takes possession of any portion of that continent (sc., of America,) and another afterwards does the same at some distance from it, where the boundary between them is not determined by the principle above mentioned, (sc., actual possession of the sea-coast,) the middle distance becomes such of course." (British and Foreign State Papers, 1817-18, p. 328.)

Circumstances however will sometimes create exceptions, as for instance, where the control of a district left unoccupied is necessary for the security of a state, and not essential to that of another: in this case the principle of _vicinitas_ would be overruled by higher considerations, as it would interfere with the perfect enjoyment of existing rights of established domain.

Thus Vattel, l. i., Sec. 288. "A nation may appropriate to herself those things of which the free and common use would be prejudicial or dangerous to her. This is a second reason for which governments extend their dominion over the sea along their coasts, as far as they are able to protect their rights. It is of considerable importance to the safety and welfare of the state that a general liberty be not allowed to all comers to approach so near their possessions, especially with ships of war, as to hinder the approach of trading nations, and molest their navigation." And again, after stating that it was not easy to determine strictly the limits of this right, he goes on to say: "Each state may, on this head, make what regulation it pleases so far as respects the transactions of the citizens with each other, or their concerns with their sovereign, but, between nation and nation, all that can reasonably be said is, that in general, the dominion of the state over the neighboring sea extends as far as her safety _renders it necessary_ and her power is able to assert it; since on the one hand she cannot appropriate to herself a thing that is common to all mankind, such as the sea, except so far as she _has need of it for some lawful end_, and on the other, it would be a vain and ridiculous pretension to claim a right which she were wholly unable to assert." At present, by the general law of nations, the possession of the coast is held to entitle a nation to exclusive jurisdiction over the adjoining seas to the extent of a marine league, as being necessary for the free execution of her own municipal laws, and as being within the limits which she can command by her cannon. On the ground then of her own right of self-preservation, a nation which has made a settlement may possess a perfect right of excluding other nations from settling within a given distance. This right, however, is evidently an accessory of the right of settlement.

A further accessorial right of settlement has, in modern times, been recognised by the practice of civilised nations in both hemispheres, namely, a right of pre-emption from the aboriginal inhabitants in favor of the nation which has actually settled in the country. It is this right which Great Britain asserts against all other civilised nations in respect to New Zealand, and which the United States of America assert against all other civilised nations in respect to the native Indians. The claim involved in it is evidently based upon the principle, that the acquisition of such territory by any other nation would be prejudicial to the full enjoyment of the existing territorial rights of the nation which has made settlement there. Such seems to be the only recognised ground upon which a _perfect right of contiguity_ can be set up. The principle of mere vicinity in the case of nations, unless strictly limited, will only result in furnishing a graceful pretext for the encroachments of the strong upon the weak, whenever a powerful state should cast a longing eye upon an adjoining district, and feel a natural inclination to render its own possessions more complete:

Oh si angulus ille
Proximus accedat, qui nunc deformat agellum.

The right of _innocent use_ seems to have been admitted into the code of international law in order to obviate the strength of this temptation, but it is only an imperfect right, unlike that of necessity, and all attempts to construct a title upon principles of convenience can result only in imperfect titles, which require the express acknowledgment of other nations to give them validity.