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.