45 



were susceptible, and to -work that a hencficud use was made of tlie 

 whole Territoiy by the occupants. 



CCXLIV. It should be uieiitioned that the practice of uatious in 

 both hemispheres is to acknowledge in favor of any civilized nation 

 making a settlement in an uncivilized country a right oi^ preemption 

 of the contiguous territory from the native inhabitants as against any 

 other civilized nations. It is a right claimed by Great Britain with 

 respect to her Australian settlements, especially New Zealand; and by 

 the United States of America with respect to the Indians in their back 

 States. 



In the claim of Eussia to the exclusive "hunting in the Northeastern 

 seas," to say nothing of the rights of fishery and navigation, as such 

 rights are defined in the international law, there is enough in the highest 

 legal authority to support thefouudation of theright, which is the hand- 

 maiden of peace, namely, the right which is "a mode of original acqui- 

 sition which is effected by the operation of time,'* and is "what the 

 English and French jurists term prescription." 



On page 298, Vol. 1, Sir EobertPhillimore says: 



The doctrine of immemorial prescription is, from the very necessity 

 of the case, indispensable in the system of imblic law. Accordingly 

 we find it mentioned more than once in the constitutions of the ancient 

 German Empire and as a mode of acquiring public rights. 



On pages 299 and 300 the same author says: 



Having discussed the position of prescription in the systems of pri- 

 vate and ]mblic law we nov,' approach the consideration of a matter, 

 holden by the master mind of Grotius to be one of no mean difficulty, 

 namely, international prescrijition. Does there arise between nations, 

 as between individuals, a presumption from long possession of a terri- 

 tory or of a right which nuist be considered as a legitimate source of 

 international acquisition 1 



In seeking an answer to this important question it is necessary to 

 keep clear of all subtle disquisitions with which this subject has been 

 perplexed -, whether, for instance, itbe the creatureof natural or civil law, 

 or Avhetlier it must be always founded upon a presumption of voluntaiy 

 abandonment or dereliction by the former owner. Through these meta- 

 physical labyrinths we cannot find a clue for questions of international 

 jurisprudence. The effect of the ln2ise of time upon the property and 

 right of one nation relatively to another is the real subject for our con- 

 sideration. And if this be borne steadily in mind it will be found, on 

 the one hand, in the highest degree irrational to deny that prescription 

 is a legitimate means of international acquisition; and it will, on the 

 other hand, be found both inexpedient and imjiracticable to attem])t to 

 define the exact jieriod within which it can be said to have become 

 established — or, in other words, to settle the precise limitation of time 

 which gives validity to the title of national possessions. 



Again, on pages 301, 302, and 303, he says: 



CGLVIII. It is true that some later writers on the law of nations have 

 denied that the doctrine of prescription has any place in the system of 

 international law. But their opinion is overwhelmed by authority, at 

 variance with practice and usage, and inconsistent with the reason of 

 the thing. Grotius, Heiueccius, Wolfi", Mably, Vattel, Eutherforthj 



