65. The Right to Hold and Acquire Property is the fifth right of the fundamental rights of states. This is necessarily an inherent right. A state, like a private corporation, is in law also a legal person and, in its corporate capacity, may have absolute ownership of property, just as an individual in the state has ownership in his property. Thus arsenals, public buildings, public lands, etc., are owned by the state in the same way but for more general uses. States also own, in some cases, railways, telegraphs, telephones, canals, and public works. This state-owned property, so long as it is within the boundaries of the state, plays no particular part in international law, but when found in a foreign state it is not subject to the jurisdiction of the owning state, excepting that kind of property which enjoys certain immunity-generally known as exterritoriality. Residences of ambassadors and ships of war are instances of this kind. As a matter of fact, this immunity has been extended also to other kinds of property of a state, such as public vessels not armed, munitions of war, etc., found within foreign territory. When a new state is recognized as duly formed from the parent state, the fixed public property of the latter within the new boundaries goes to the new state. On the other hand, in the case of an unsuccessful insurrection, in the course of which the property of the state was seized, the parent state resumes possession of what was formerly its own and succeeds to what the insurgents have created, or acquired, for their public uses during the insurrection. In addition to the state ownership of property for public uses, a state has control over the property of its inhabitants to the extent of levying taxes to be paid by them in a manner required by law. Besides this, there is the right of eminent domain, which is a natural right pertaining to the state resting upon its power, in case of necessity, to use private property for public purposes. Of this a learned writer says: "The term, eminent domain, properly speaking, is not applicable to the property of the state but only to the property of individuals, for the right of the state to dispose of its property results from the right of ownership, and not from the right of eminent domain, which latter right remains in the state after it has transferred the ownership of its property. It is a right which, from its very nature, is inseparable from the sovereignty and is necessarily transferred with the sovereignty."1 A state may acquire property by any of the recognized ways by which individuals acquire private property, and it may dispose of property under the same absolute right. "Such disposition," says the writer above quoted, "is sometimes a question of peculiar interest to foreign states who may acquire such property by purchase, exchange, cession, conquest, and treaties of confirmation, and especially where such acquisitions are made from states continually subject to revolutions and fluctuations in the character of its government and in the powers of its rulers. The act of a government de facto, a government which is submitted to by the great body of the people and recognized by other states, is binding as the act of the state; and it is not necessary for others to examine into the origin, nature, and limits of that authority. If it is an authority de facto, and sufficient for the purpose, others will not inquire how that authority was obtained."2 Territory may be acquired by occupation, as previously mentioned. The title gained by such occupation arises from the discovery, use, and settlement of territory not occupied by any civilized power. Discovery alone is not enough to give domain and the attendant jurisdiction to the state to which the discoveries belong. Such discovery must be followed by possession and occupation to maintain the right of jurisdiction against the rest of the world. The extent of possessions gained by discovery and settle 1 Halleck, 4th ed., Baker, I, p. 163. ment has been held to extend from the seacoast first occupied into the unclaimed interior, or back country, and generally to the sources of the rivers emptying within that coast-line, as well as to all of their branches and the country they cover (the hinterland). It has also been held in this connection that when two portions of a seacoast have been taken possession of by two different states that the midway distance between them becomes the boundary if their acquired territory is contiguous. By a declaration adopted at the Berlin conference of 1885, the thirteen powers there assembled agreed that "any power which henceforth takes possession of a tract of land on the coast of the African Continent, outside of its present possessions, or which, being hitherto without such possessions, shall acquire them, as well as the power which assumes a protectorate there, shall accompany the respective act with a notification thereof, addressed to the other signatory powers of the present act, in order to enable them, if need be, to make good any claims of their own."1 A title may be acquired to lands or islands formed by accretion from the mainland, and it was so decided as to the new islands of Louisiana, formed in the vicinity of the delta of the Mississippi, by Sir William Scott, in the case of the Anna, in 1805. Acquisition by cession depends upon the treaties or agreements by which it is made. Title to territory of the state can be acquired by prescription. Of this Hall says: "Title by prescription arises out of a long-continued possession, where no original source of proprietary right can be shown to exist, or where possession in the first instance being wrongful, the legitimate proprietor has neglected to assert his right or has been unable to do so. The principle upon which it rests is essentially the same as that of the doctrine of prescription which finds a place in every municipal law, although in its application to beings for whose dis Moore's "Digest," vol. I, pp. 267, 268. putes no tribunals are open some modifications are necessarily introduced. . . . Internationally, therefore, prescription must be understood not only to confer rights when the original title of the community to the lands which form the territory of the state or its nucleus is too mixed or doubtful to be appealed to with certainty or, as has sometimes occurred, when settlements have been made and enjoyed without interference within lands claimed, and perhaps originally claimed with right, by states other than that forming the settlement."1 Territory may be acquired as a result of military operations by conquest. This may in the course of time become more than simple military occupation, as the acquisition may harden to conquest, in a legal sense, with a permanent title. At the close of a war this may be incorporated either into the treaty of peace or a special treaty as a matter of cession. Properly speaking, title by conquest is not accompanied by a treaty of cession. If territory obtained by military conquest is ceded by treaty afterward, it becomes acquisition by cession. There are, of course, cases of cession by good-will or purchase in times of peace entirely disconnected with warlike proceedings. "In that way," says Taylor, "the colony of Louisiana was ceded by France to Spain, in 1762, as indemnity for the loss of Florida, transferred to England by the treaty of Paris; and, in 1850, Great Britain ceded to the United States a part of the Horseshoe Reef, in Lake Erie, for lighthouse purposes. As instances of cessions for valuable considerations, reference may be made to the transfers to the United States of Louisiana from France in 1803; of Florida from Spain in 1819; and of Alaska from Russia in 1867. In the treaty of Berlin, 1878, Rumania returned to Russia that portion of Bessarabia secured at her expense through the treaty of Paris, 1856, in exchange for the Dobrudja, taken from Turkey."2 In our acquisitions after the Mexican War and also after 1 Hall, 6th ed., pp. 119, 120. 2 H. Taylor, pp. 275, 276. the Spanish-American War, we voluntarily paid large sums of money as a compensation for territories acquired from each state.. There are forms of temporary or quasi cessions that may or may not become permanent. Examples of these may be found in the leasing of the ports of Kiao-chau to Germany, of Port Arthur and Talien-wau to Russia, and of Wei-hai-wei to Great Britain, on the part of China. Instances of another but of a related nature are found in the administrative occupation of Cyprus and Egypt by Great Britain, the nominal sovereignty in these latter cases remaining with Turkey. So far as the lease of Kiao-chau to Germany is concerned, the then imperial government of China transferred to Germany, for the period of the lease, all of its sovereign rights within the leased territory. The best authorities seem to agree as to this case that the restoration of the territory in question at the end of the specified time is not likely, and that generally the pretended leases are really alienations so disguised as to spare the feelings of the state concerned and its inhabitants. As to Cyprus, there has been a real dismemberment of its sovereignty. Along with the whole of its name, the Sultan of Turkey retains only an insignificant portion of its sovereignty. The British high commissioner makes and unmakes "laws and ordinances with the advice of a legislative council, subject to a power of disallowance retained by the British crown, which can also legislate directly for the island by order in council."1 There are yet to be discussed what are generally known as colonial protectorates and spheres of influence. As to the former, Westlake, the best authority upon the subject, says that "a colonial protectorate, then, may be defined as a region in which there is no state of international law to be protected, but which the power that has assumed it does not yet claim to be internationally its territory, although that power claims to exclude all other states from any action within it. The British 1 Westlake, "Int. Law," I, pp. 137, 138. |