Here then we have the principle recognised of use for the purposes of trade being in a degree common to both nations, yet such a state of things being not incompatible with distinct jurisdiction and sovereignty.
Still less would the fact of the convention permitting promiscuous and intermixed settlements to be made everywhere by the subjects of both parties be incompatible with distinct jurisdiction; for, as Vattel observes (l. ii., § 98,) “it may happen that a nation is contented with possessing only certain places, or appropriating to itself certain rights in a country that has not an owner, without being solicitous to take possession of the whole country. In this case, another nation may take possession of what the first has neglected; but this cannot be done without allowing all the rights acquired by the first to subsist in their full and absolute independence. In such cases, it is proper that regulations should be made by treaty, and this precaution is seldom neglected among civilised nations.”
Mr. Gallatin further continues: “On that subject (jurisdiction and sovereignty) it (the convention) established or changed nothing, but left the parties where it found them, and in possession of all such rights, whether derived from discovery, or from any other consideration, as belonged to each, to be urged by each, whenever the question of permanent and separate possession and sovereignty came to be discussed between them.”
It may be perfectly correct to say that the convention “left the parties where it found them, and in possession of all such rights, whether derived from discovery or from any other consideration, as belonged to each;” for the very object of the third article was not the concession of favours, but the recognition of mutual rights. On the other hand, that it left all question of rights open, to be urged by each at any future time, as if there had been no declaration or acknowledgment on the subject, seems not merely to be at variance with the substance of the third article, but to be utterly irreconcilable with the preamble of the convention, which contemplates an amicable arrangement of the differences between the two Crowns, “which, setting aside all retrospective discussion of the rights and pretensions of the two parties, should fix their respective situation for the future on a basis conformable to their true interests, as well as to the mutual desire with which their said Majesties are animated, of establishing with each other, in every thing and in all places, the most perfect friendship, harmony, and good correspondence.”
If, indeed, Mr. Gallatin means that whenever the parties should find it desirable to terminate the condition of occupation in common, it would be competent for either party to appeal to the general law of nations, subject to the provisions of the treaty, the reason of the thing at once suggests that recourse must be had to some general principles of law, in a case for which the treaty does not provide. But the general law of nations must only be invoked as supplementary to the special law recognised by the convention. By the special law of the treaty, the mutual right of making settlements in places not already occupied was acknowledged; but the rights accruing to either party by virtue of such settlements, when made, would be determined by the general law of nations. The reciprocal liberty of free access and unmolested trade with such settlements was provided for by the fifth article; the treaty, however, was silent as to the relations of the parties in other respects, after they should have made settlements. These relations then would be determined by the general law.
The common right of either party to make settlements in places not occupied was recognised by the convention. Occupation was thus declared to be the test of exclusive title, and “territory not occupied,” was impliedly “territory without an owner.” Priority of settlement would thus give as perfect a title under the special law of the convention, as discovery and settlement under the general law of nations. If this view be correct, then Vattel supplies the rule of law which would determine the mutual relations attendant on such settlements. “If at the same time two or more nations discover and take possession of an island, or any other desert land without an owner, they ought to agree between themselves, and make an equitable partition; but, if they cannot agree, each will have the right of empire and the domain in the parts in which they first settled.” (l. ii., § 95.)
The mutual right of the two parties to settle in places not yet occupied, having thus been acknowledged by the convention, the sovereignty was from the nature of things left in abeyance pending the establishing of such settlements, but there was no provision in the treaty to suspend the operation of the general law of nations, in respect to the territorial rights consequent on such settlements. To negative the operation of the general law, it would be necessary to show that the dominium utile, as distinct from the sovereignty, was all that accrued by such settlements. But in cases in which the territory in use, (dominium utile) as distinct from the territory in chief (dominium eminens,) has been granted by treaty, such a concession has never been said to be granted “for the purpose of making settlements,” and it may be observed that in such cases, express reference is made to the party who retains the territory in chief.
Thus in the 17th article of the Treaty of Paris, by which Spain granted to Great Britain a usufructuary right in the territory of the Bay of Honduras, it was provided:—
“That his Britannic Majesty shall cause to be demolished the fortifications which his subjects shall have erected in the Bay of Honduras, and in other places of the territory of Spain in that part of the world, four months after the ratification of the present treaty.
“And his Catholic Majesty shall not permit his Britannic Majesty’s subjects or their workmen to be disturbed or molested under any pretence whatever in the said places, in their occupation of cutting, loading, and carrying away logwood; and for this purpose they may build without hindrance, and occupy without interruption, the houses which are necessary for themselves or families.