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Gustavus

Formerly the most punctilious rules of etiquette were observed at most of the courts of Europe. Rank of nations. Adolphus, who said that all crowned heads were equal, was one of the first to despise pretensions of superiority. Rules are necessary to prevent ambassadors and their wives from contending for precedence, or feeling that an insult has been offered to them or their country. But with all the nicety of court etiquette, such quarrels have frequently taken place. Among the most noted of these disputes, was one of long continuance between the ambassadors of France and Spain. The place of France, until the sixteenth century, according to the ceremonial of the Romish see, had been next to that of the German emperor, but, as Charles V. was both Emperor and King of Spain, his successor on the Spanish throne claimed precedence of other kings, and thus brought on a collision. At the council of Trent the dispute rose to such a point that the French declared that they would renounce obedience to the Pope if deprived of their place, and it was only settled by allowing the Frenchman to continue in his seat next to the Legate who presided, and the Spaniard to occupy a seat of eminence opposite to him. The most serious outbreak, however, of this rivalry occurred at London in 1661, when, according to the usage of the time, the ambassadors went in procession to meet a newly-arrived ambassador from Sweden. The ministers of both nations appeared with an armed retinue. As the Frenchman attempted to put his carriage next to that of the English king, the Spaniard raised a shout, scared the horses, and occupied the place. The French then fired upon them, and received back their fire, so that eight were killed and forty wounded in the encounter; but the Spaniards, having during the mêlée cut the hamstrings of the French horses, were able to secure the coveted precedence. Louis XIV. threatened war for this outrage, and thus forced the Spaniards into a declaration that their ambassador should never be present at ceremonies where a contest for rank could arise between them and the French.

According to the old rules of Europe, the Pope (whom Protestant nations and Russia regard as only an Italian sovereign) ranked highest in dignity, the German emperor next, monarchies before republics, sovereigns before half-sovereigns; and princes of inferior name closed the list. The following order of rank emanated from the Roman court in 1504: the Roman Emperor, King of Rome, King of France, of Spain, Arragon, Portugal, England, Sicily, Scotland, Hungary, Navarre, Cyprus, Bohemia, Poland, Denmark (with which Sweden and Norway were then united), the Venetian republic, the Duke of Brittany, Burgundy, 1 See Ward's Hist. ii. 272, seq. (Dublin ed.)

Electors of Bavaria, Saxony, Brandenburg, Archduke of Austria, Duke of Savoy, Grand Duke of Florence, Dukes of Milan, Bavaria, Lorraine, &c.I

The rules now acted upon in regard to the rank of different states and of their sovereigns are, according to Existing rules of Heffter, the following:

rank.

1. States to which, for themselves or for their sovereigns, royal honours pertain, have an external rank before those to which these honours do not belong. Such honours are the right of sending ambassadors of the first class, the use of the royal title, crown and corresponding arms, and certain other ceremonial usages. To this rank belong emperors, kings, grand dukes, the elector of Hesse, the Swiss republic, the United States of America, the German confederation.

2. Among states of the same class entire equality of rights obtains, but the rule of precedence, in regard to rank, is settled by treaty and usage. Kings and emperors have a general equality, as is indicated by the fact that the former frequently connect the latter title with that which they are especially known by. A precedence is given to kings and emperors before sovereigns who have inferior titles, and before republics, whose special relation of rank to other states with royal honours is not definitely fixed.' 2 There is a certain order of the German states in relation to affairs of the confederation, and to this alone. Half-sovereign and protected states rank after those on which they depend. Treaties by which one state concedes the precedence to another over a third, without its consent, are of no obligation upon the latter, and may contain a violation of the respect which is its due.

The rank which a state has once obtained is usually not lost by a change of constitution.

The tendency of things is, as far as possible, towards entire equality of states. Thus commercial privileges are These distincfast disappearing, and new treaties to a great extent tions fading out. concede the advantages given to the most favoured nations. The precedence of ambassadors of the same rank is determined simply by length of residence at the court. And special tokens of respect to one nation more than to another, like those claimed by England in certain narrow seas, have nearly gone out of use.

1 Heffter, § 28, p. 49. Compare Supplement to Dumont, v. 202.
2 Heffter, § 28, p. 50.

CHAPTER II.

STRICT

TERRITORIAL RIGHTS OF STATES AND RIGHTS OF PROPERTY-
RIGHT RENOUNCED, ESPECIALLY AS TO THE USE OF NAVIGABLE
WATERS.

§ 52.

A NATION is an organised community within a certain territory; or in other words, there must be a place where its sole Property of sovereignty is exercised. It may also and will have states in interna- property of its own, like individuals and associations ; tional law, what? it may even hold such property within the borders of other states, may be the creditor of foreign states or individuals, or, unless the law of a state prohibit, may possess land there on the tenure of private ownership. Upon the property of its subjects, again, it has a certain lien, as appears from the power to lay taxes and the power to use private property for public purposes. But the right of eminent domain with which such power over private property is connected, does not imply that such property is absolutely under the control of the state, or that the state was the prior owner, and conveyed it to the individual under conditions; but the right is rather to be considered as one of necessity, without which, at times, public affairs could not move on, nor the rights of many individuals be protected. Now, although the relations of the state to its territory, to its property and to the property of individuals are different, yet, as far as other nations are concerned, they may all be included under the term property. Such property of states,' as Heffter well remarks, has only in relation to other states the same character which property has, namely, the character of exclusiveness and free disposal,' that is, of pertaining to the state to the exclusion of all other states, and of being disposed of without restraint on their part upon its will.

A state's territorial right gives no power to the ruler to alienate a part of the territory in the way of barter or sale, as was done in feudal times. In other words, the right is a public or political and not a personal one. Nor in justice can the state itself alienate a portion of its territory, without the consent of the inhabitants residing upon the same, and if in treaties of cession this is done after conquest, it is only the acknowledgment of an unavoidable fact. (Compare § 153, and Grotius 11, 6, § 4. See Note 2.)

Property of a foreign state or sovereign within the bounds of a state involves no restriction of territorial sovereignty. Territorial servitudes, as right of free harbour, of transit, &c. may exist, but are stricti juris, the presumption being always in favour of sovereignty. (Compare Bluntschli, Staatsr.' i. 189.)

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§ 53.

The territory of a nation, or that portion of the earth over which it exercises the rights of sovereignty, may Modes of acquirhave begun to pertain to it in a variety of ways. It ing territory. may have derived its title: 1. From immemorial occupation of land which was before vacant.

2. From occupation by colonies, or other incorporation of land before occupied.

3. From conquest accepted as a fact and at length ending in prescriptive right.

4. From purchase or from gift.

Other claims more doubtful or less generally acknowledged, have been: (1.) that of Portugal, derived from a bull of Pope Nicholas V. giving in 1454 to Alfonso V. the empire of Guinea, and the exclusive use of the African seas; as also the more noted bulls of Alexander VI. issued in 1493 soon after the return of Columbus from his first voyage-the first granting to Spain all lands west of a north and south line drawn a hundred leagues west of the Azores, and the other dividing the occupation of the seas between Spain and Portugal. Such a claim of course would be good only against those who admitted the Pope's right thus to dispose of the world, which few or no Catholic states would now admit. (2.) The claim on the ground of discovery. This was both exceedingly vague for how much extent of coast or breadth of interior went with the discovery?—and was good only against those who acknowledged such right of discovery, but not against the natives. Of the natives, however, very little account was made. Being heathen, they were not, in the age succeeding the discovery of America, regarded as having rights, but might be subdued and stript of sovereignty over their country without compunction. And yet when the right to territory in the new world was in dispute, a title derived from them, it might be, to soil far beyond their haunts, would perhaps be pleaded against prior occupation. The English colonies, however, which settled in this country, took, to a considerable extent, the more just course of paying for the soil on which they established themselves, and the United States have acted steadily on the principle of extinguishing the Indian title by treaty and the payment of a price.

§ 54.

1. The territory of a state includes all that portion of terra firma which lies within the boundaries of the state, What is terrias well as the waters, that is, the interior seas, lakes tory?

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Thus the sea

and rivers wholly contained within the same lines. of Azof, the Volga, Lake Michigan, the Ohio, and the sea of Marmora are exclusively in the territory respectively of Russia, the United States, and Turkey. It may happen that the boundaries of a state are not continuous, or that one part of it is separated from another, as the Rhine provinces of Prussia are cut off by Hesse, &c. from the rest of the kingdom. Or it may happen that one sovereignty, or a portion of it, is included within the limits of another. This is the case more or less in Germany, and was formerly true of Avignon and the Venaissin, which were Papal territory enclosed (enclaves hence called) in France.

2. The mouths of rivers, bays, and estuaries, furnishing access to the land.

3. The coast sea to the distance of a marine league. This is a regulation dictated by the necessities of self-protection, as is expressed in the maxim of Bynkershoek, 'terræ potestas finitur, ubi finitur armorum vis.' For the police of commerce the distance is extended to four leagues, that is, according to the usage prevailing in Great Britain and the United States, foreign goods cannot be trans-shipped within that distance without the payment of duties. The extent of coast sea included within national territory has been variously defined. Bynkershoek, and others after him, limit it by the reach of cannon shot-' quousque tormenta exploduntur.' ('De Domin. Mar.' cap. 2, from which place the maxim above cited is taken.) Rayneval limits it by the horizon, a very vague and absurd suggestion; Valin, by the depth of the sea: territory should reach out (he would propose) to where there is no bottom. Modern writers, whether limiting it by a marine league, or by cannon shot, agree substantially in making it an incident to territorial sovereignty on the land. (Compare Ortolan, Diplom. de la Mer,' vol. i. chap. 8.) As the range of cannon is increasing, and their aim becoming more perfect, it might be thought that the sea line of territory ought to widen. But the point is not likely to become one of any great importance.

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4. Vessels belonging to the citizens of the nation on the high seas, and public vessels, wherever found, have some of the attributes of territory.

In regard, however, to the territorial character of vessels it is necessary to be more definite, for if they have this property in some respects but not in all, only false and illogical deductions can be drawn from an unqualified statement. Is it true, then, that they are identical in their properties with territory? If a ship is confiscated on account of piracy or of violation of customhouse laws in a foreign port, or is there attached by the owner's creditor and becomes his property, we never think that territory has been taken away. For a crime committed in port a vessel

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