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undignified scrambles for possession, when the possibility of a general occupancy chanced to occur, was abolished by the Statute of Frauds; and most of the illustrations of occupatio derived from English law must now be sought in the rules as to personal property. Even there the field is a very restricted one. Feudal ideas on the subject of game and fisheries have made wild animals comparatively unimportant as subjects of casual seizure: the Roman legislator was content to give the landowner the right of politely warning the sportsman off the premises. Perhaps the principal subjects of occupation in our law are things which their owners have abandoned ; and this class, again, is reduced to a very shadowy minimum, if the reasoning of certain recent cases is sound, which, by a benevolent fiction, attributes to the possessors of land an intention to possess every chattel abandoned thereon, whether they have any idea of its being there or not.
But in International Law, which, as Blackstone informs us, is, in some mysterious way, part of the law of England, the subject in question assumes an aspect of much greater importance, as might have been expected, considering the extent to which that law has derived the substance of its rules from the Roman system. There is a good deal of the earth's surface which has not yet been reduced into possession by civilized nations. Yet their agents, authorized and unauthorized, are constantly making expeditions, hoisting flags, forming settlements, and doing other acts of possession outside the limits of their respective territories. Such acts of possession, if they reach a certain degree of intensity, confer a title by occupation, which is internationally valid. But when we come to inquire what acts attain this requisite standard, and what extent of territory the occupation carries with it, the answer is not always readily forthcoming. The matter is still further complicated when the land in dispute has not always been derelict, but has been abandoned by some other civilized power previously in possession. Such an abandonment is
perfectly possible, though not common.
The island of St. Lucia—the same West Indian island which has just recently been visited by so disastrous a hurricane-was colonized in about 1638 by the British. The career of the settlement was short, and not sweet; it is variously stated as lasting from one to three years, when the aborigines from other islands of the archipelago put an end to its existence it is said, by smoking the colonists out with dried red pepper) through resentment at the conduct towards Dominican natives of some of our pioneers of civilization. Only nine or ten years elapsed before the French appeared on the scene and took possession of the island, remaining there for at least twenty years, and displaying the customary aptitude of their nation for conciliating their savage neighbours, inter alia, by adopting their costume—so their enemies alleged. Their ownership was accordingly confirmed, at the Peace of Paris, a hundred years later, when the sister islands of St. Vincent, Dominica, Tobago, and the Grenadines were allotted to this country.
It is a question, in each case, of more or less difficulty, whether such an express or tacit abandonment of territory has taken place. Naturally, the more firmly the former occupiers were established, the less easy will it be to infer from their acts that they meant to release their hold. If all its inhabitants were to emigrate from St. Kilda by the next steamer, it would be long before Russia could validly take possession of it for a coaling station. In the luxurious times when there were Indies to be lighted on by the navigator, and islands to be had for the asking, mere discovery seems to have been relied on as a ground of asserting ownership. Now that our limits have grown so painfully contracted that we find it necessary to turn our attention to Mars, and ransack the skies for the fresh interests which the seas have ceased to afford us, discovery has become inadmissible as a means of monopolizing any part of our restricted heritage. Even such acts as annexation by the hoisting of flags require
to be, sooner or later, supplemented by more substantial acts of occupation, in order to exclude from the spot the hungry army of nations anxious to extend their borders. And the generous limits which the practice of a former age accorded to the area over which sovereignty was acquired by the establishment of a fort or settlement, have, at the same time, been much restricted. The possession of a post at an estuary, for instance, no longer forms a ground for claiming title to the whole of the river-basin.
Of course, in the case of a small island, there is not, and never was, any difficulty in fixing the limits of the sovereignty which ensued on the formation of settlements, or the performance of other acts of possession upon it. The whole island passed, and passes, to the incoming power. The same principle is still employed in the case of the larger islands. On the coasts of continents and of the largest islands, occupation gives rise to difficulties, for the solution of which there are nevertheless certain well-known (if not too well-established) rules. But when we come to deal with land in the interior of continents, we are almost without the assistance of authority in determining what area of territory is affected by such acts as we have mentioned. It has long been foreseen that the partition among civilized peoples of the interior of Africa would be attended by grave difficulties of this kind. To avoid them, so far as possible, was the object of the numerous conventions which the principal powers have entered into among themselves, providing that they shall not infringe each other's sphere of influence. Such treaties, of course, do not create (as some jurists seem to have thought) any new rules of portioning out African land: they affect no one but the parties to them, and do not restrict in any way the rights of third parties, which must, as France has successfully shown in West Africa, be determined on general principles.
These are not easy to lay down. Dismissing as altogether
antiquated the doctrine-last seriously urged, by the United States, in the celebrated Oregon discussion of sixty years ago —that the possession of a river's mouth carries the right to the whole river-basin, the one rule which offers itself for our guidance is that the owner of coastal land must be recognized as being in occupation of the region behind it; not-as some would have it-to an indefinite extent, but as far as the watershed. This is a reasonable principle, for the crest of the watershed is universally accepted as the proper boundary in cases where countries are separated by mountain ranges. It is also a principle as to which, as Twiss says, there has never been any dispute among nations. The unsettlement of such clear rules on the plea of altered circumstances is strongly to be deprecated and jealously to be guarded against. In virtue of her coast-line, therefore, Egypt appears (subject to the rights of Abyssinia) to be in constructive occupation of a tract of land which would, at all events, include Fashoda ; which is approximately in about the latitude of Cairo, and of course, within the watershed of the Nile. The case of the Columbia River, in Oregon, is different, for the head-waters take a sharp turn, which brings them behind the British coast line, and so, on Twiss's principles, gave them to this country.
If this doctrine is not applicable to the special circumstances of the Nile valley, still Egypt has a much more meritorious claim to fall back upon, though, unfortunately, it is not an indisputable one. This lies in her actual occupation of the Nile provinces below Khartûm, as far south as Sabat and even further. It is not necessary here to trace the tangled story of Mehemet's prowess and Ismail's ambitions. Only a few facts need be glanced at.
South of the junction of the White and Blue Niles at Khartûm, there lie, to the west, the provinces of Darfûr and Kordofan; and to the east, between the Niles, that of Senaar. These were subdued in 1820; and Egyptian
authority, such as it was, gradually extended down the Nile to somewhere south of Fashoda, and into the Bahr-el-Ghazel district to the south-west. But what kind of an authority it was, and what were the exact limits of its exercise, away from the river, it is not easy to discover. Nor is it very material to do so, for in 1870 an entirely new departure was taken. Ismail of Egypt became seized with the desire to extend that country's dominions into the far south, down to, and perhaps so as to include, the Nyanzas—at the same time consolidating these acquisitions by the construction of a railway from Cairo to the Lakes. The all-important railway never became a fait accompli; but the Equatorial Province of Egypt did (though its limits stopped short of the Nyanzas). To bring the country thus annexed into submission, Ismail employed successively Baker and Gordon. The measures which were taken by these governors against the slave traffic, particularly those which Gordon employed, had the effect of arousing a spirit of deep discontent, not only in the new province, but also in the old dominions of Egypt, to the north, which had been conquered by Mehemet Ali in 1820. Then came a succession of Egyptian native governors; and finally the revolt of Kordofan and Darfur, the defeat of Hicks' army, and the abandonment of Khartûm. Fourteen years have elapsed since then, and Khartûm has been recovered. We have become so accustomed, for the last few years, to look forward to the latter event, that one forgets that for a time it was quite on the cards that Khartûm-still more the Nile to the south, and Darfûr, Kordofan, and Bahr-el-Ghazel to the south-west cf it, would be given up to the undisturbed possession of the Arabs. Cherif Pasha resigned office, with his cabinet, because we would not permit any attempt at their recovery. It is mainly the aggressive attitude of the Khalifa which has induced us to permit him at length to be "smashed.”
On these facts, it really does seem, that not only is there a