“When a nation takes possession of a country to which no prior owner can lay claim, it is considered as acquiring the empire or sovereignty over it, at the same time with the domain. For, since the nation is free and independent, it can have no intention, in settling in a country, to leave to others the rights of command, or any of those rights that constitute sovereignty. The whole space over which a nation extends its government, becomes the seat of its jurisdiction, and is called its territory.” (Vattel, b. i., § 205.)
The acquisition of sovereignty, therefore, attends as a necessary consequence upon the establishment of a nation in a country. But a nation may establish itself in a country, either by immigration in a body, or by sending forth a colony; and when a nation takes possession of a vacant country, and settles a colony there, “that country, though separated from the principal establishment or mother country, naturally becomes a part of the state, equally with its ancient possessions.” (Vattel, b. i., § 210.)
The right of domain in a nation corresponds to the right of property in an individual. But every nation that governs itself by its own authority and laws, without dependence on any foreign power, is a sovereign state; and when it acts as a nation, it acts in a sovereign capacity. When a nation therefore occupies a vacant country, it imports its sovereignty with it, and its sovereignty entitles it not merely to a disposing power over all the property within it, which is termed its Eminent Domain, but likewise to an exclusive right of command in all places of the country which it has taken possession of. In this respect, then, a nation differs from an individual, that, although an independent individual may settle in a country which he finds without an owner, and there possess an independent domain (the dominium utile, as distinguished from the dominium eminens,) yet he cannot arrogate to himself an exclusive right to the country, or to the empire over it. His occupation of it would be, as against other nations, rash and ridiculous (Vattel, b. ii., § 96;) and it would be termed, in the language of the Jus Gentium, a “temeraria occupatio, quæ nullum juris effectum parere potest,” (Wolffii Jus Gentium, § 308.)
A nation, however, may delegate its sovereign authority to one or more of its members for the occupation of a vacant country, equally as for other purposes, where it cannot act in a body; in such cases the practice of nations allows it to be represented by an agent. Thus the right of settling a colony is a right of occupation by an agent. The colonists represent the nation which has sent them forth, and occupy their new country in the name of the mother country. But the colonists must be sent forth by the public authority of the nation, otherwise they will possess no national character, but will be considered to be a body of emigrants, who have abandoned their country.
Thus, Kluber, in his “Droit des Gens Modernes de l’Europe:”—“Un état peut acquérir des choses qui n’appartiennent à personne (res nullius) par l’occupation (originaire;) les biens d’autrui au moyen de conventions (occupation dérivative.).... Pour que l’occupation soit légitime, la chose dolt être susceptible d’une propriété exclusive; elle ne doit appartenir à personne; l’état doit avoir l’intention d’en acquérir la propriété, et en prendre possession (the State ought to have an intention to acquire the right of property in it, and to take possession of it;) c’est à dire, la mettre entièrement à sa disposition et dans son pouvoir physique.”
Occupation, then, in this sense of the word, denotes the taking possession of a territory previously vacant, which has either always been unoccupied, or, if ever occupied, has been since abandoned. It constitutes a perfect title, and its foundation may be referred to an axiom of natural law: “Quod enim ante nullius est, id ratione naturali occupanti conceditur.” (Dig. l. 3, D. de Acq. Rer. Dom.) This principle, engrafted into the Roman law, was as fully recognised by Bracton and by Fleta:—“Jure autem gentium sive naturali dominia rerum acquiruntur multis modis. Imprimis, per occupationem eorum, quæ non sunt in bonis alicujus, et quæ nunc sunt ipsius regis de jure civili, et non communia ut olim.” (Bracton de Leg., l. ii., c. 1.)
Amongst professed writers upon international law, Wolff, who is justly considered as the founder of the science, and who, in his voluminous writings, furnished the stores out of which Vattel compiled his “Law of Nations,” has set forth so clearly this principle, as that upon which title by occupation is based, that his words may be quoted from Luzac’s French translation of his “Institutions du Droit de la Nature et des Gens:”—
“On appelle occupation, un fait par lequel quelqu’un déclare qu’une chose qui n’est à personne doit être à lui, et la réduit en tel état qu’elle peut être sa chose. Il paraît de là, que le droit d’occuper une chose, ou de s’en emparer, appartient naturellement à chacun indifféremment, ou bien que c’est un droit commun de tous les hommes, et comme on appelle manière primitive d’acquérir, celle par laquelle on acquiert le domaine d’une chose qui n’est à personne, il s’ensuit que l’occupation est la manière primitive d’acquérir.” (Part ii., ch. ii., § ccx.)
As, however, the term occupation has come to signify in common parlance rather a temporary holding than a permanent possession,—e. g., the occupation of Ancona by the French, the occupation of Lisbon by the English, the occupation of the Four Legations by the Austrians, there is an inconvenience in its ambiguity, and from this circumstance it has resulted, that occupancy is frequently employed to designate what is, properly speaking, occupation. This however is to be regretted, as the word occupancy is required in its own sense to mark the right to take possession, as distinct from the right to keep possession,—the jus possidendi from the jus possessionis,—the jus ad rem, as civilians would say, from the jus in re. Thus the right of a nation to colonise a given territory to the exclusion of other nations is a right of occupancy; the right of the colonists to exclude foreigners from their settlements would be a right of occupation.
Mr. Wheaton, in his Elements of International Law, (l. i., chap. iv., p. 205,) says, “The exclusive right of every independent state to its territory and other property is founded upon the title originally acquired by occupancy, and subsequently confirmed by the presumption arising from the lapse of time, or by treaties and other compacts of foreign states.”