第19章 TERRITORIAL RIGHTS OF SOVEREIGNTY.(2)

Many of you must be aware that the origin of negro slavery in South Americahas been traced to the substitution of a hardier race for the weakly nativeIndianswho were dying in multitudesPerhaps it is only just to remarkthatafter nearly four centuriesthe ill-reputed Spanish experiments havein the long run brought about a nearer assimilation of the white and colouredraces than has been seen in any other part of the worldThere are some SpanishAmerican Republics in which the whole community is virtually of Indian extractionand colour.

In North Americawhere the discoverers or new colonists were chieflyEnglishthe Indians inhabiting that continent were compared almost universallyto the Canaanites of the Old Testamentand their relation to the colonistswas regarded as naturally one of war almost by Divine ordinanceThis viewwas first dissented from by an English sect to whom many experiments in thepractical application of humanity are due -the Quakersand the agreementsmade with the Indians of Pennsylvania by William Penn satisfied the consciencesof those whom he representedNayfurther observation has shown a very decidedtendency in the United States to admit that the land necessary for theirsubsistence should not be taken away from the North American Indians unlessin some form or other sufficient provision be made for their subsistenceby agriculture or by huntingThe purely legal doctrine is thisa very famousAmerican judgewho did more than any other man to shape the early jurisdictionof the Supreme Court of the United Stateslaid down that the British titleto American territorywhich the Federal Government inheritedexcluded theAmerican Indians from all rights except the right of occupancyand gavethe Federal Government the power of extinguishing this right of occupancyby conquest or purchaseBut the admission that enough land must be leftfor the subsistence of all savage natives is now generally made by all proprietorsof new territoryAs a rulehoweverat the present moment the tribes orcommunities found on the lands which the European states have taken possessionofhave passed the stage which the American Indians were in when Europeansfirst came into contact with themPrince Bismarck has expressly declaredthat he regards the German annexations as following the example of the BritishEast India CompanyHere it is assumed that some organised community is foundin possession of the landAfter the annexation they retain whatever rightsthey possessed beforesave only the right of having foreign relations withanybody they please.

Up to this point I have been speaking of the jurisdiction and authorityclaimed by sovereign states over certain definite portions of the earth'ssurfaceThe narrow limits of my course forbid my exhausting what is a veryextensive subjectIt will be more convenientI thinkthat I should leavethe remaining topics contained in the subject of Sovereignty over landandthat I should pass on to Sovereignty over watertreating it very briefly.

As beforeI merely note points of interest and difficulty which occur asI proceedStates in fact are in the habit of exercising or claiming sovereignauthority over portions of the seaover lakes and riversand over certainvessels belonging to them or to their subjects when lying in the water ofthe high seas or in water over which they exercise or claim jurisdiction.

The first branch of our inquiry brings us to whatat the birth of InternationalLawwas one of the most bitterly disputed of all questionsthe questionof the mare clausum and the mare liberum -sea under the dominion of a particularPower or sea open to all -names identified with the great reputations ofGrotius and SeldenIn all probability the question would not have arisenbut for the dictum of the Institutional Roman writers that the sea was bynature common propertyAnd the moot point was whether there was anythingin naturewhatever that word might have meantwhich either pointed to thecommunityof the sea or of riversand also what did history show to havebeen the actual practice of mankindand whether it pointed in any definiteway to a general sense of mankind on the subjectWe do not know exactlywhat was in tile mind of a Roman lawyer when he spoke of natureNor is iteasy for us to form even a speculative opinion as to what can have been theactual condition of the sea in those primitive ages somehow associated withthe conception of natureThe slender evidence before us seems to suggestthat the sea at first was common only in the sense of being universally opento depredationThe sea of early Greek literature appears to have swarmedwith piratesBut there is older evidenceThere are some Egyptian inscriptionswhich appear to speak of piratical leagues formed among the small Mediterraneanstates for making descent on weak and wealthy maritime communitiesThereare some of the names recorded which may be identified with the ancient appellationsof tribes subsequently famousand one cannot avoid the suspicion that thefamous war of Troy arose from an expedition of this kindwhatever otherpretexts for it there may have beenWhatever jurisdiction may have beenasserted probably did not spring from anything which may be called nature,but was perhaps a security against piracyAt all events this is certain,that the earliest development of Maritime Law seems to have consisted ina movement from mare liberumwhatever that may have meantto mare clausumfrom navigation in waters over which nobody claimed authorityto watersunder the control of a separate sovereignThe closing of seas meant deliveryfrom violent depredation at the cost or by the exertion of some power orpowers stronger than the restNo doubt Sovereignty over water began as abenefit to all navigatorsand it ended in taking the form of protection.