Chapter VII

ON THE ACQUISITION OF TERRITORY BY OCCUPATION.

Connexion of the Sovereignty of a Nation with the Domain.--Vattel. The
Sovereignty and Eminent Domain (Dominium eminens) attend on Settlement
by a Nation.--Settlement by an Individual limited to the Acquisition
of the Useful Domain (Dominium utile.) A Nation may occupy a Country
by its Agents, as by settling a Colony. Kluber's Droits des Gens.--The
Occupation must be the Act of the State.--Occupation constitutes a
perfect Title.--Bracton de Legibus.--Wolff's Jus Gentium.--Acts
accessorial to Occupation, such as Discovery, Settlement, &c., create
only an imperfect Title.

"When a nation takes possession of a country to which no prior owner can lay claim, it is considered as acquiring the _empire_ or sovereignty over it, at the same time with the _domain_. For, since the nation is free and independent, it can have no intention, in settling in a country, to leave to others the rights of command, or any of those rights that constitute sovereignty. The whole space over which a nation extends its government, becomes the seat of its jurisdiction, and is called its _territory_." (Vattel, b. i., Sec. 205.)

The acquisition of sovereignty, therefore, attends as a necessary consequence upon the establishment of a nation in a country. But a nation may establish itself in a country, either by immigration in a body, or by sending forth a colony; and when a nation takes possession of a vacant country, and settles a colony there, "that country, though separated from the principal establishment or mother country, naturally becomes a part of the state, equally with its ancient possessions." (Vattel, b. i., Sec. 210.)

The right of _domain_ in a nation corresponds to the right of _property_ in an individual. But every nation that governs itself by its own authority and laws, without dependence on any foreign power, is a sovereign state; and when it acts as a nation, it acts in a sovereign capacity. When a nation therefore occupies a vacant country, it imports its sovereignty with it, and its sovereignty entitles it not merely to a disposing power over all the property within it, which is termed its Eminent Domain, but likewise to an exclusive right of command in all places of the country which it has taken possession of. In this respect, then, a nation differs from an individual, that, although an independent individual may settle in a country which he finds without an owner, and there possess an independent domain (the dominium utile, as distinguished from the dominium eminens,) yet he cannot arrogate to himself an exclusive right to the country, or to the empire over it. His occupation of it would be, as against other nations, rash and ridiculous (Vattel, b. ii., Sec. 96;) and it would be termed, in the language of the Jus Gentium, a "temeraria occupatio, quae nullum juris effectum parere potest," (Wolffii Jus Gentium, Sec. 308.)

A nation, however, may delegate its sovereign authority to one or more of its members for the occupation of a vacant country, equally as for other purposes, where it cannot act in a body; in such cases the practice of nations allows it to be represented by an agent. Thus the right of settling a colony is a right of occupation by an agent. The colonists represent the nation which has sent them forth, and occupy their new country in the name of the mother country. But the colonists must be sent forth _by the public authority of the nation_, otherwise they will possess no national character, but will be considered to be a body of _emigrants_, who have abandoned their country.

Thus, Kluber, in his "Droit des Gens Modernes de l'Europe:"--"Un etat peut acquerir des choses qui n'appartiennent a personne (_res nullius_) par l'occupation (originaire;) les biens d'autrui au moyen de conventions (occupation derivative.).... Pour que _l'occupation_ soit legitime, la chose dolt etre susceptible d'une propriete exclusive; elle ne doit appartenir a personne; _l'etat doit avoir l'intention d'en acquerir la propriete, et en prendre possession_ (the State ought to have an intention to acquire the right of property in it, and to take possession of it;) c'est a dire, la mettre entierement a sa disposition et dans son pouvoir physique."

_Occupation_, then, in this sense of the word, denotes the taking possession of a territory previously vacant, which has either always been unoccupied, or, if ever occupied, has been since abandoned. It constitutes a perfect title, and its foundation may be referred to an axiom of natural law: "Quod enim ante nullius est, id ratione naturali occupanti conceditur." (Dig. l. 3, D. de Acq. Rer. Dom.) This principle, engrafted into the Roman law, was as fully recognised by Bracton and by Fleta:--"Jure autem gentium sive naturali dominia rerum acquiruntur multis modis. Imprimis, per occupationem eorum, quae non sunt in bonis alicujus, et quae nunc sunt ipsius regis de jure civili, et non communia ut olim." (Bracton de Leg., l. ii., c. 1.)

Amongst professed writers upon international law, Wolff, who is justly considered as the founder of the science, and who, in his voluminous writings, furnished the stores out of which Vattel compiled his "Law of Nations," has set forth so clearly this principle, as that upon which title by occupation is based, that his words may be quoted from Luzac's French translation of his "Institutions du Droit de la Nature et des Gens:"--

"On appelle _occupation_, un fait par lequel quelqu'un declare qu'une chose qui n'est a personne doit etre a lui, et la reduit en tel etat qu'elle peut etre sa chose. Il parait de la, que le droit d'occuper une chose, ou de s'en emparer, appartient naturellement a chacun indifferemment, ou bien que c'est un droit commun de tous les hommes, et comme on appelle maniere primitive d'acquerir, celle par laquelle on acquiert le domaine d'une chose qui n'est a personne, il s'ensuit que _l'occupation est la maniere primitive d'acquerir_." (Part ii., ch. ii., Sec. ccx.)

As, however, the term _occupation_ has come to signify in common parlance rather a temporary holding than a permanent possession,--e. g., the occupation of Ancona by the French, the occupation of Lisbon by the English, the occupation of the Four Legations by the Austrians, there is an inconvenience in its ambiguity, and from this circumstance it has resulted, that _occupancy_ is frequently employed to designate what is, properly speaking, occupation. This however is to be regretted, as the word occupancy is required in its own sense to mark the right to take possession, as distinct from the right to keep possession,--the _jus possidendi_ from the _jus possessionis_,--the _jus ad rem_, as civilians would say, from the _jus in re_. Thus the right of a nation to colonise a given territory to the exclusion of other nations is a right of _occupancy_; the right of the colonists to exclude foreigners from their settlements would be a right of _occupation_.

Mr. Wheaton, in his Elements of International Law, (l. i., chap. iv., p. 205,) says, "The exclusive right of every independent state to its territory and other property is founded upon the title originally acquired by _occupancy_, and subsequently confirmed by the presumption arising from the lapse of time, or by treaties and other compacts of foreign states."

It may be gathered from these writers, that to constitute a valid territorial title by occupation, the territory must be previously vacant (_res nullius_,) and the _state_ must intend to take and maintain possession: and that the vacancy of the territory may be presumed from the absence of inhabitants, and will be placed beyond question by the acquiescence of other nations. If those conditions are fulfilled, the proprietary title which results is _a perfect title against all other nations_.

There are however several acts, that are accessorial to occupation, which do not separately constitute a perfect title. Such acts are Discovery, Settlement, Demarcation. Thus, discovery, may not be accompanied with any intention to occupy, or may not be followed up by any act of occupation within a reasonable time; settlement may be effected in territory not vacant; boundaries may be marked out which encroach upon the territory of others; so that acts of this kind will, separately, only found an imperfect or conditional title: their combination, however, under given circumstances, may establish an absolute and perfect title.