But the doctrine in the text may now be said to be very generally established (j).

CCXLIX. The practice of nations supports the doctrine of beneficial use and occupation (k). In a dispute which arose between Great Britain and Spain relative to the subject of Nootka Sound (7), Spain claimed a large portion of the northwestern coast of America upon the ground of priority of discovery and of long possession, confirmed by the 8th Article (m) of the Treaty of Utrecht (1713). The British Government resisted their claim upon the ground that the Earth was the heritage of all mankind, and that it was competent to each State, through the means of occupation and cultivation, to appropriate a portion of it. The dispute was ended by a convention between the two Powers, in which it was agreed, that it was lawful for the respective subjects of each to navigate freely the Pacific and the Southern Seas, to land upon the coasts of these seas, to traffic with the natives, and to form settlements; subject to certain conditions specified in the convention.

CCL. The claims of the United States of North America

(j) Eug. Ortolan, Dom. intern. p. 49, n. 2; Moser's Versuch, Buch 5, p. 541.

Wenck, t. iii. p. 815.

Johnson's Works, vol. xii.: Thoughts on the Falkland Islands.
Martens, Rec. t. ii. p. 1.

Inscription que le Lieutenant Clayton, commandant le fort Egmont, fit graver sur une plaque de plomb attachée au fort Egmont pour conserver les droits de la couronne d'Angleterre sur les Isles de Falckland lorsque les Anglais quittèrent ledit fort le 22 mai 1774:

"Qu'il soit notoire à toutes les nations que les Isles de Falckland, ainsi que ce Fort, les Magasins, Quais, Havres, Bayes et Criques qui en dépendent, appartiennent de droit uniquement à sa Très-Sacrée Majesté George III., Roi de la Grande-Bretagne, de France, et d'Irlande, Défenseur de la Foi, etc. En foi de quoi cette Plaque a été fixée, et les Pavillons de S. M. Britannique déployés et arborés, comme une marque de possession, par Samuel Guillaume Clayton, Officier commandant aux Isles de Falckland, le 22 mai 1774."

(k) Eug. Ortolan, Dom. int. p. 48.

(1) Wheaton, Elém. t. i. p. 162.

(m) Schmauss, ii. 1422. The words of the Article are very vague.

upon the Oregon Territory were, as has been shown, chiefly founded upon priority of discovery, both by their own subjects, and by the Spaniards, whose pretensions they had by the Treaty of 1819 inherited. The British Government denied both the fact of prior discovery, and the enormous inference sought to be drawn from it; and most clearly asserted at the same time the right of other nations to occupy vacant portions of the earth wheresoever they might be. The temporary arrangements of 1818 and 1827 were merged in the definitive Treaty of Washington in 1846 (n).

(n) "Article I.-From the point on the forty-ninth parallel of north latitude, where the boundary laid down in existing Treaties and Conventions between Great Britain and the United States terminates, the line of boundary between the territories of her Britannic Majesty and those of the United States shall be continued westward along the said forty-ninth parallel of north latitude to the middle of the channel which separates the continent from Vancouver's Island, and thence southerly, through the middle of the said channel, and of Fuca's Straits to the Pacific Ocean; provided, however, that the navigation of the whole of the said channel and straits, south of the forty-ninth parallel of the north latitude, remain free and open to both parties.

"Article II.-From the point at which the forty-ninth parallel of north latitude shall be found to intersect the great northern branch of the Columbia River, the navigation of the said branch shall be free and open to the Hudson's Bay Company, and to all British subjects trading with the same, to the point where the said branch meets the main stream of the Columbia, and thence down the said main stream to the ocean, with free access into and through the said river or rivers; it being understood that all the usual porterage along the line just described shall be in like manner free and open.

"In navigating the said river or rivers, British subjects, with their goods and produce, shall be treated on the same footing as citizens of the United States; it being, however, always understood that nothing in this article shall be construed as preventing or intending to prevent the Government of the United States from making any regulations respecting the navigation of the said river or rivers not inconsistent with the present Treaty.

“Article III.—In the future appropriation of the territory south of the forty-ninth parallel of north latitude, as provided in the first article of this Treaty, the possessory rights of the Hudson's Bay Company, and of all British subjects who may be already in the occupation of land or other property lawfully acquired within the said territory, shall be respected.

"Article IV.-The farms, lands, and other property of every description

belonging to the Puget's Sound Agricultural Company, on the north side of the Columbia River, shall be confined to the said Company. In case, however, the situation of those farms and lands should be considered by the United States to be of public and political importance, and the United States Government should signify a desire to obtain possession of the whole or of any part thereof, the property so required shall be transferred to the said Government at a proper valuation, to be agreed upon between the parties."—Ann. Reg. 1846, pp. 453, 454.

Under this Treaty a dispute arose between the two States as to the ownership of the island of San Juan. The matter was one of those dealt with by the Treaty of Washington of 1871, and was, by one of its provisions, submitted to the arbitration of the German Emperor. His award dated October 21, 1872, gave it to the United States.- Vide infra, vol. iii. chap. i. s. 3.

CHAPTER XIII.

PRESCRIPTION.

CCLI. The second mode of Original Acquisition is effected by the operation of time, by what English and French. jurists term Prescription (a). In crder to arrive at any solution of this difficult question which may be at all satisfactory, it is necessary to make some observations upon the place which Prescription occupies in the systems both of Private and Public Law, as introductory to the consideration of the place occupied by the same doctrine in the system of International Jurisprudence.

First, as to Private Law. In all systems of private jurisprudence, the lapse of time has a considerable bearing upon the question of property (b). There is, according to all such systems, a period when a de facto becomes a de jure ownership, when possession becomes property. The nature of man, the reason of the thing, the very existence of society, demand that such should be the case. The Roman Law does but give expression to this paramount necessity in the maxim, "Vetus

(a) Grotius, 1. ii. c. iv.

Puffendorf, Jus. Nat. et Gent. 1. iv. c. xii.

Wolff, Jus. Nat. p. iii. c. vi.

Vattel, 1. i. c. xvi. s. 199; 1. ii. c. xi. ss. 140, 151.

(b) Grotius indeed says that usucapio is the creature of the Civil Law, because nothing is done by time, though everything is done in time; but this seems an unworthy subtlety, and is inconsistent with other passages in his work.

"Le Temps, qui renferme en soi l'idée de la durée, de la répétition et de la succession des phénomènes, un des agents de modification, de destruction et de génération pour les choses physiques, restera-t-il sans influence sur la modification, sur la destruction et sur la génération des droits?"-Domaine internat., par E. Ortolan, p. 98.

"tas quæ semper pro lege tenetur" (c). The doctrine of Usucapio exhibits the first trace of this mode of acquisition in Roman Jurisprudence (d). According to this doctrine, the possessor, justo titulo et bona fide, during two years of land, and during one year of movables, which had not previously belonged to him, acquired a property in it or them. This institution was originally confined to the prædia Italica and to the Roman citizen; but the Prætor extended it to the fundi provinciales, and to the peregrinus, under the appellation of præscriptio longi temporis. Justinian, who destroyed the distinction between civil and natural property, took also away the distinction between fundi Italici and provinciales, blended together the usucapio and the præscriptio, and conferred not only a right of possession but of property on the person who had possessed movables for three, and immovables for ten years inter præsentes, or twenty inter absentes, provided that the subject-matter had been capable of usucapio or præscriptio, and there had been justus titulus and bona fides(e). He also added another species of Prescriptive Acquisition, the Præscriptio xxx vel xl annorum. This longissimi temporis

(c) Dig. xxxix. t. iii. 2: see also xliii. t. vii. 3.

Dig. xliii. t. xx. 3, 4: "Ductus aquæ cujus origo memoriam excessit, jure constituti loco habetur.

(d) Which the Germans call Ersitzung. In the XII. Tables it bore the name of ususauctoritas, i.e. usus et auctoritas.

Puchta, Instit. ii. s. 240.

Savigny, R. R. iv. s. 195.

Savigny, Recht des Besitzes, Abschnitt i. s. 2.

Instit. ii. 6, de usucapionibus et longi temporis præscriptionibus.

Dig. xli. t. iii. de usurpationibus et de usucapionibus.-Code vii. t. 31, de usucapione transformanda et de sublata differentia rerum mancipi et nec mancipi.-33, de præscriptione longi temporis decem vel viginti annorum. -34, in quibus causis cessat longi temporis præscriptio.—35, quibus non objicitur longi temporis præscriptio.-38, ne rei dominicæ vel templorum vindicatio temporis præscriptione submoveatur.-39, de præscriptione xxx vel xl annorum.

(e) "Par là cessent les différences entre la propriété civile et la propriété naturelle-entre l'usucapion, cette patronne de l'Italie, et la prescription, cette patronne du genre humain."-Troplong, p. 139. Cod. C., De Usucapione transformanda.