46 



"WhcatoTi, and Bnrke constitute a greatly preponderating^ array of 

 authorities, both as to number and weight, upon the opposite side. 



The practice of nations, it is not denied, proceeds upon the presump- 

 tion of prescription, whenever thereis scopefor the admission of thatdoc- 

 trine. The same reason of the thing- which introduced this principle 

 into the civil jurisprudence of every country, in order to quiet posses- 

 sion, give security to property, stop litigation, and prevent a state of 

 continued bad leeling and hostility between individuals, is equally 

 powerful to introduce it, for the same purpose, into the jurisprudence 

 which regulates the intercourse of one society with another, more 

 especially when it is remembered that war represents between States 

 litigation between individuals. It is very strange that the fact that 

 most nations possess in their own municipal codes a positive rule of 

 law upon the subject, has been used as an argument that tlie general 

 doctrine has no foundation in international law. 



It is admitted, indeed, that immemorial prescription constitutes a 

 good title to national possession; but this is a perfectly nugatory 

 admission, if, as it is sometimes explained, it means only that a State 

 which has acquired originally by a bad title, may keep jjossession of 

 its acquisition as against a State which has no better title. If it liad 

 been merely alleged that the exact number of years prescribed by the 

 Eoman law, or by the municipal institute of any particular nation, as 

 necessary to constitute ordinary prescriptions, is not binding in the 

 affairs of nations, the position would be true. It is, perhaps, the 

 difficulty attending the application to nations of this technical part of 

 the doctrine which has induced certain writers to deny it altogether; 

 but incorrectly, for, whatever the necessary lapse of time may be, there 

 unquestionably is a lapse of time after which one State is entitled to 

 exclude every other from the property of which it is in actual posses- 

 sion. In other words, there is au international prescription, whether 

 it be called immemorial possession or by any other name. The peace 

 of the world, the highest and best interests of humanity, the fulfillment 

 of the ends for which States exist, require that this doctrine be firmly 

 incorporated in the code of international law. 



Will this tribunal shrink fro7n the rccogniiion of this (loctrine, note that 

 an opportunity, distinctly given, calls for a firm declaration f 



The importance of prescription as a basis of title, or right, to any 



property, or exclusive privilege, is thus stated by Sir Eobert Philli- 



more (p. 305) : 



But that prescription is the main pillar upon which the security of 

 national property and peace depends, is as incontrovertable a proposi- 

 tion as that the ijroperty and peace of individuals rest upon the same 

 doctrine. 



To these remarks should be added the observation of another great 

 modern jurist: 



The general consent of mankind has established the principle that 

 long and uninterrupted possession by one nation exchules the claim of 

 every other. Whether this general consent be considered as an implied 

 contract or as positive law, all nations are equally bound by it, since 

 all are parties to it, since none can safely disregard it without impugn- 

 ing its own title to its possessions, and since it is founded upon mutual 

 utility, and tends to promote the general welfare of mankind. ( Wheaton .) 



