LECTURE IV. TERRITORIAL RIGHTS OF SOVEREIGNTY.
All the department of International Law with which I was occupied at the close of my last lecture， the acquisition by a State of unappropriated territory； has been much influenced by the Roman Law. What takes place may still be described by the Roman phrase occupatio. The fundamental rule is the same in the original and in the derivative system. In order that new lands may be appropriated， there must be physical contact with them， or physical contact resumable at pleasure， coupled with an intention to hold them as your own. The leading precedent in such cases is the controversy as to the status of the Oregon territory and as to the mode in which that status arose. You will find it set forth at some length in all the modern international treatises， and more particularly in those of American writers. No dispute more nearly gave rise to a war. The interests at first at stake seemed to be merely those of competing fur companies； but this impression has not been justified by the event. The whole position of the territories in dispute has been changed by the construction of two great railways. The Northern Pacific Railway has opened up the fertile and wealthy lands which were claimed by the Americans on the south， while on the north the lands claimed by Great Britain include the Canadian province of British Columbia， which has been practically incorporated with the Canadian Dominion by the construction of the Canadian Pacific Railway. I should perhaps add that the facts in controversy were not altogether plain； but it is generally admitted that Captain Gray， from whom the Americans claimed title， was the uncommissioned agent of a fur company， while Captain Vancouver， upon whose discoveries the English claim was based， though he assumed possession of the territory for Great Britain， never took this step till he heard of Gray\'s observation. This， after what I have said of the principles， may serve to show the difficulties of the question at issue. It was most wisely settled by a compromise embodied in the Treaty of Washington.
Here let me observe that one great question constantly arises upon the appropriation of territory by discovery or by occupation： what area of land is affected by the necessary acts when they are properly completed？ Settlements are usually first established upon coasts， and behind them stretch long spaces of unoccupied territory， from access to which other nations may be cut off by the appropriation of the shore lands， and which， with reference to a population creeping inwards from the sea， must be looked upon as more or less attendant on the coast. What then in this case is involved in the occupation of a given portion of shore？ It seems to be a settled usage that the interior limit shall not extend further than the crest of the watershed. It is also generally admitted， on the other hand， that the occupation of the coast carries with it a right to the whole territory drained by the rivers which empty their waters within its line； but the admission of this right is perhaps accompanied by the tacit reservation that the extent of coast must bear some reasonable proportion to the territory which is claimed in virtue of its possession.
I said before that the proceedings of several European Powers give us reason to think that questions with regard to Sovereignty over new countries acquired by occupation may again arise， though possibly not in the present century. It is to be observed， however， that hitherto the title， which has been put forward to lands assumed by Germany and France， by Spain and Italy， has very generally been made to rest upon the consent of the native indigenous community occupying them， or of some sort of Government to which they are in the habit of submitting. The question as to the degree in which the occupation of new land by a savage or barbarous tribe would bar occupation by civilized settlers is one of considerable antiquity and of much difficulty， and the way in which it has been treated has not been generally thought to reflect credit on civilized explorers or the states to which they belonged. There is no doubt that international practice started with the assumption that the native indigenous title might be neglected on the ground that the inhabitants found in the discovered countries were heathen. Roman Catholic explorers and their sovereigns were satisfied with admitting that it was the duty of states taking possession of new territory to convert the inhabitants to the Roman Catholic form of Christianity. The attempts of the Spanish Government to Christianise the Indians of Mexico and South America appear to have been quite honest， and the subsequent sufferings of the aborigines seem to be attributable to the civil institutions introduced from Spain. In Spain， as in all continental European countries， at the day of Columbus and Cortez there existed the corvee or obligation to labour gratuitously for the State on roads and other public works； and the corvee was transplanted to the new American dependencies. There was also in the mining provinces of Northern Spain a considerable population who were bound to work at mining operations for the benefit of the proprietors， and whose status very nearly approached that of the slave. This quasi-servile status was more widely extended， and was even found in Scotland at the beginning of the last century. It was therefore hardly surprising that it was introduced into Spanish America， North and South， where it brought about frightful cruelties. Queen Isabella of Castile appears to have been sincerely anxious to abate the cruelty of the Spanish forced labour； but she was assured by the missionaries that， when released from the obligations of cultivation and mining， the timid natives retreated into the wilds from the company of the Spaniards and lost their Christianity. Many of you must be aware that the origin of negro slavery in South America has been traced to the substitution of a hardier race for the weakly native Indians， who were dying in multitudes. Perhaps it is only just to remark that， after nearly four centuries， the ill-reputed Spanish experiments have in the long run brought about a nearer assimilation of the white and coloured races than has been seen in any other part of the world. There are some Spanish American Republics in which the whole community is virtually of Indian extraction and colour.
In North America， where the discoverers or new colonists were chiefly English， the Indians inhabiting that continent were compared almost universally to the Canaanites of the Old Testament， and their relation to the colonists was regarded as naturally one of war almost by Divine ordinance. This view was first dissented from by an English sect to whom many experiments in the practical application of humanity are due —— the Quakers； and the agreements made with the Indians of Pennsylvania by William Penn satisfied the consciences of those whom he represented. Nay， further observation has shown a very decided tendency in the United States to admit that the land necessary for their subsistence should not be taken away from the North American Indians unless in some form or other sufficient provision be made for their subsistence by agriculture or by hunting. The purely legal doctrine is this： a very famous American judge， who did more than any other man to shape the early jurisdiction of the Supreme Court of the United States， laid down that the British title to American territory， which the Federal Government inherited， excluded the American Indians from all rights except the right of occupancy， and gave the Federal Government the power of extinguishing this right of occupancy by conquest or purchase. But the admission that enough land must be left for the subsistence of all savage natives is now generally made by all proprietors of new territory. As a rule， however， at the present moment the tribes or communities found on the lands which the European states have taken possession of， have passed the stage which the American Indians were in when Europeans first came into contact with them. Prince Bismarck has expressly declared that he regards the German annexations as following the example of the British East India Company. Here it is assumed that some organised community is found in possession of the land. After the annexation they retain whatever rights they possessed before， save only the right of having foreign relations with anybody they please.
All the department of International Law with which I was occupied at the close of my last lecture， the acquisition by a State of unappropriated territory； has been much influenced by the Roman Law. What takes place may still be described by the Roman phrase occupatio. The fundamental rule is the same in the original and in the derivative system. In order that new lands may be appropriated， there must be physical contact with them， or physical contact resumable at pleasure， coupled with an intention to hold them as your own. The leading precedent in such cases is the controversy as to the status of the Oregon territory and as to the mode in which that status arose. You will find it set forth at some length in all the modern international treatises， and more particularly in those of American writers. No dispute more nearly gave rise to a war. The interests at first at stake seemed to be merely those of competing fur companies； but this impression has not been justified by the event. The whole position of the territories in dispute has been changed by the construction of two great railways. The Northern Pacific Railway has opened up the fertile and wealthy lands which were claimed by the Americans on the south， while on the north the lands claimed by Great Britain include the Canadian province of British Columbia， which has been practically incorporated with the Canadian Dominion by the construction of the Canadian Pacific Railway. I should perhaps add that the facts in controversy were not altogether plain； but it is generally admitted that Captain Gray， from whom the Americans claimed title， was the uncommissioned agent of a fur company， while Captain Vancouver， upon whose discoveries the English claim was based， though he assumed possession of the territory for Great Britain， never took this step till he heard of Gray\'s observation. This， after what I have said of the principles， may serve to show the difficulties of the question at issue. It was most wisely settled by a compromise embodied in the Treaty of Washington.
Here let me observe that one great question constantly arises upon the appropriation of territory by discovery or by occupation： what area of land is affected by the necessary acts when they are properly completed？ Settlements are usually first established upon coasts， and behind them stretch long spaces of unoccupied territory， from access to which other nations may be cut off by the appropriation of the shore lands， and which， with reference to a population creeping inwards from the sea， must be looked upon as more or less attendant on the coast. What then in this case is involved in the occupation of a given portion of shore？ It seems to be a settled usage that the interior limit shall not extend further than the crest of the watershed. It is also generally admitted， on the other hand， that the occupation of the coast carries with it a right to the whole territory drained by the rivers which empty their waters within its line； but the admission of this right is perhaps accompanied by the tacit reservation that the extent of coast must bear some reasonable proportion to the territory which is claimed in virtue of its possession.
I said before that the proceedings of several European Powers give us reason to think that questions with regard to Sovereignty over new countries acquired by occupation may again arise， though possibly not in the present century. It is to be observed， however， that hitherto the title， which has been put forward to lands assumed by Germany and France， by Spain and Italy， has very generally been made to rest upon the consent of the native indigenous community occupying them， or of some sort of Government to which they are in the habit of submitting. The question as to the degree in which the occupation of new land by a savage or barbarous tribe would bar occupation by civilized settlers is one of considerable antiquity and of much difficulty， and the way in which it has been treated has not been generally thought to reflect credit on civilized explorers or the states to which they belonged. There is no doubt that international practice started with the assumption that the native indigenous title might be neglected on the ground that the inhabitants found in the discovered countries were heathen. Roman Catholic explorers and their sovereigns were satisfied with admitting that it was the duty of states taking possession of new territory to convert the inhabitants to the Roman Catholic form of Christianity. The attempts of the Spanish Government to Christianise the Indians of Mexico and South America appear to have been quite honest， and the subsequent sufferings of the aborigines seem to be attributable to the civil institutions introduced from Spain. In Spain， as in all continental European countries， at the day of Columbus and Cortez there existed the corvee or obligation to labour gratuitously for the State on roads and other public works； and the corvee was transplanted to the new American dependencies. There was also in the mining provinces of Northern Spain a considerable population who were bound to work at mining operations for the benefit of the proprietors， and whose status very nearly approached that of the slave. This quasi-servile status was more widely extended， and was even found in Scotland at the beginning of the last century. It was therefore hardly surprising that it was introduced into Spanish America， North and South， where it brought about frightful cruelties. Queen Isabella of Castile appears to have been sincerely anxious to abate the cruelty of the Spanish forced labour； but she was assured by the missionaries that， when released from the obligations of cultivation and mining， the timid natives retreated into the wilds from the company of the Spaniards and lost their Christianity. Many of you must be aware that the origin of negro slavery in South America has been traced to the substitution of a hardier race for the weakly native Indians， who were dying in multitudes. Perhaps it is only just to remark that， after nearly four centuries， the ill-reputed Spanish experiments have in the long run brought about a nearer assimilation of the white and coloured races than has been seen in any other part of the world. There are some Spanish American Republics in which the whole community is virtually of Indian extraction and colour.
In North America， where the discoverers or new colonists were chiefly English， the Indians inhabiting that continent were compared almost universally to the Canaanites of the Old Testament， and their relation to the colonists was regarded as naturally one of war almost by Divine ordinance. This view was first dissented from by an English sect to whom many experiments in the practical application of humanity are due —— the Quakers； and the agreements made with the Indians of Pennsylvania by William Penn satisfied the consciences of those whom he represented. Nay， further observation has shown a very decided tendency in the United States to admit that the land necessary for their subsistence should not be taken away from the North American Indians unless in some form or other sufficient provision be made for their subsistence by agriculture or by hunting. The purely legal doctrine is this： a very famous American judge， who did more than any other man to shape the early jurisdiction of the Supreme Court of the United States， laid down that the British title to American territory， which the Federal Government inherited， excluded the American Indians from all rights except the right of occupancy， and gave the Federal Government the power of extinguishing this right of occupancy by conquest or purchase. But the admission that enough land must be left for the subsistence of all savage natives is now generally made by all proprietors of new territory. As a rule， however， at the present moment the tribes or communities found on the lands which the European states have taken possession of， have passed the stage which the American Indians were in when Europeans first came into contact with them. Prince Bismarck has expressly declared that he regards the German annexations as following the example of the British East India Company. Here it is assumed that some organised community is found in possession of the land. After the annexation they retain whatever rights they possessed before， save only the right of having foreign relations with anybody they please.