for it followed that there might be lunatics whose abstract notions of right and wrong were entirely correct, and who were yet prevented by mental disease from perceiving the wrongness of particular acts. Under these circumstances further definition was inevitable, and so knowledge of the nature and quality of the particular offence alleged was made the test of criminal responsibility by the rules in MacNaughton's case ([1843], 4 St. Tr. N.S., 847), which were rapidly reproduced in America (cf. State v. Spencer [1846], 1 Zab. 196; Willis v. People [1870], 33 N.Y. 715; U.S. v. Holmes [1858], 1 Clif. 98; U.S. v. Shults [1854], 6 Mack 121; People v. Hobson [1861], 17 Cal. 424; per contra, however, Commonwealth v. Rogers [1844], 7 Met. Mass. 500; People v. Klein [1845], 1 Edm. Sel. Ca., pp. 22-35). The emphasis assigned to the doctrine of "partial insanity" in criminal law eventually overthrew, both in America (Delafield v. Parish [1862], 25 N.Y. 1) and in England (Banks v. Goodfellow [1870], L.R. 5 Q.B. 549; Ballantine v. Evans [1886], 13 Ct. of Sess., 4th ser., 666; and cf. Durham v. Durham [1885], 10 P.D., at p. 82, a case of marriage; and Jenkins v. Morris [1880], 14 Ch. D., 674), the metaphysical theory as to the inconsistency between any degree of insanity and civil capacity.

It may be added that the United States and England have alike modified their attitude to MacNaughton's case. The modern trend of American judicial opinion is distinctly adverse to the rules (cf. the masterly opinion of Judge Somerville in Parsons v. State [1887], 81 Ala. 577; Hopps v. People [1863], 31 Ill. 385; Brown v. Commonwealth [1875], 78 Pa. St. 122), while in England there is a growing tendency, at nisi prius, to manipulate them so as to afford protection to the more marked cases of moral insanity. As instances of this tendency, reference may be made to Reg. v. Davies [1888], (Western Mail, March 15th, 1888); Reg. v. Burt [1885] (Norfolk Chronicle and Gazette, November 10th, 1885); Duncan's case, Wood Renton on Lunacy, at p. 901; Reg. v. Leggatt [1897] (Dundee Circuit Court, Jo. of Ment. Sc., vol. 43, N.S. 420). On the other hand, the rules are sometimes rigidly adhered to (see charge of Day, J., in Reg. v. Allcock [1896], Notts. Ass., Jo. of Ment. Sc., ubi sup., 421).

The subject cannot be further pursued here. Enough perhaps has been said to accomplish the purpose with which the above observations have been made.

OCCUPATION

AND RES NULLIUS.

[Contributed by JOHN MACDONELL, ESQ., C.B., LL.D.]

In

IN recent times have been many international controversies in which occupation of territory, the conditions and consequences of it, and (what is part of the same subject) the nature of res nullius have been considered. these discussions appears great diversity of opinion even as to principles. Obsolete theories are still put forward; legal fictions are repeated as if they were facts; and the reasons which now actually determine the results of such controversies are often disguised in the language of discarded theories. No doubt a succession of international arbitrations relating to disputed boundaries and territories is gradually clearing up doctrines which writers on international law had left obscure or imperfect. No doubt, too, the Berlin Conference of 1885, the discussion to which it gives rise, and the labours of the Institut de Droit International (which has several times had the question before it) have helped to elucidate the subject. But every international arbitration involving territorial claims or questions of boundary reveals confusion and uncertainty in thought and language.

Three or four different theories on this subject are at present in the field. They are inconsistent; they originated in different ages; but in international arbitrations they are still put forward as if they were all equally valid. According to the first of these theories, discovery was held to give a title to countries inhabited by uncivilised nations. It was part of the common law of Europe that territories occupied by pagans belonged to the Christian nations which discovered them, at all events if there was a notification of intention to acquire.1 Then came a period in which nations preferred to derive their title to sovereignty over new countries from "occupation," which might be partial or fictitious; occupation, as it was said, merely oculis et affectu. The acts relied upon might be the hoisting of a flag, the erection of a mound or cross, the firing of a salute, the purchase of a treaty in exchange for rum, beads, or knick-knacks from a chief who professed to sell what he did not always own. In every dispute as to boundaries or territory, these two theories are still brought forward, and in the majority of books the latter, in some form or other, is still the dominant theory. And yet there is reason to think that it is a continuation of the confusion between sovereignty and property to be met with very often in the

The history of this period is admirably described in Salomon's L'Occupation des Territoires sans Maitres.

literature of international law. In the controversies as to the Caroline Islands, the Island of Bulama, Angra Pequena, Delagoa Bay, the Venezuelan boundary question, and Fashoda, fallacies originating in this confusion abound. It was natural enough in feudal times; the boundary between rights of dominion and ownership was then hard to draw. Expelled from municipal law, the confusion is still a snare to publicists arguing about the title to disputed territory. As has been truly said, "this fallacy has found its last refuge in international law." To insist that discussions of what are really questions of sovereignty should, as far as possible, be cleared of references to "occupation and be carried on in language applicable to the former is as important as it ever was.2

How occupation came to have the prominent place in those controversies which it has acquired is to be chiefly traced to the influence of Roman law. Early writers on international law assumed that the rules of private law could be applied to the transactions of States, and that such rules were sufficient to cover the field of international relations. For them international law was Roman law writ large. This assumption had its advantages. The discussion proceeded along clear lines. Instructive analogies were suggested. There are ideas and rules common to both international and private law. Many of the principles regulating contracts or torts are equally applicable whether States or private persons are concerned. In many matters the State is in truth the individual writ large. Sometimes the analogy is still pressed with little reservation as to its accuracy. Mr. Jezé, the author of an excellent work on "Occupation," remarks:

"La définition de l'animus domini en droit public est analogue. Il nous suffit pour l'obtenir de remplacer le mot proprieté par celui de souveraineté."

A substitution often made, and rarely, it is submitted, without introducing confusion.

In how many ways this theory, which identifies property with sovereignty, has diverted attention from the real issues to be determined cannot be here shown. But one or two illustrations of the insufficiency of doctrines of Roman law as to possession or occupation to answer what are in truth questions as to sovereignty may be given. It was a principle of Roman law that possession once obtained might be retained if there was the intention to retain. In the Code (7, 32, 4) we read :

"Licet possessio nudo animo acquiri non possit, tamen solo animo retineri potest. Si ergo prædiorum desertam possessionem non derelinquendi affectione

"Just in so far as the ideal of feudalism is perfectly realised, all that we call public law is merged in private law. Jurisdiction is property, office is property, the kingship itself is property. The same word dominium has to stand now for ownership and now for property" (Maitland and Pollock, History of English Law 1, 230).

The Portuguese "case" in the Delagoa Bay Arbitration was permeated by this confusion between sovereignty and property. (See, for example, p. 83; Parliamentary Papers, 1884 [c. 4262], 61, 71).

transacto tempore non coluisti, sed metus necessitate culturam corum distulisti, præjudicium tibi ex transmissi temporis injuria generari non potest."

In the Portuguese "case," with respect to Delagoa Bay, such texts as the above were cited in favour of a title practically unsupported by recent acts or exercise of authority. What applicability is there in this doctrine to questions of sovereignty? Few nations would consent to recognise the claims of another to a large tract or region based on the plea that the latter had ages ago occupied it and had never given up the intention of re-occupying it, though in fact it had long exercised no control. It would be said, "We must look to present facts and see who is actual master; we respect not paper claims to sovereignty, but the outward and visible signs of it." It was a principle of Roman law that possession of a part which was not severable from the rest of the property was possession of the whole :

"Quod autem diximus, et corpore et animo acquirere nos debere possessionem, non utique ita accipiendum est, ut qui fundum possidere velit, omnes glebas circumambulet, sed sufficit quamlibet partem ejus fundi introire, dum mente et cogitatione hac sit, uti totum fundum usque ad terminum velit possidere" (Digest 21, 2, 3). This was a principle reasonable enough as applied to a field, a farm, or a garden, but unreasonable if applied to the sovereignty of a continent or a country. He who occupies one part of a well-defined field can in a moment pass to another part; he can shut out intruders; and he can when he pleases exercise acts of ownership over the whole. But the presence of a Government at one point of a territory, the existence of a fort or a custom house, is compatible with the independence of the inhabitants elsewhere. And yet the above text has always been cited to justify annexation when it was convenient to do so.

For obvious reasons most systems of private law recognise a period of time after which titles to property are unquestionable. The considerations which justify rules as to prescription do not apply, or apply with diminished force, to the acquisition of sovereignty. It is possible in private matters to fix a period of prescription which, having regard to the duration of life or the ordinary course of affairs, is generally reasonable. Can we say the same of States which last indefinitely? Each case depends on its circumstances; and generally the chief facts to be reckoned with are not to be estimated by any juridical rules. Grotius long ago stated some of the reasons which had been given why usucapio was inapplicable to loss or acquisition of sovereignty. Lord Salisbury puts the point with his usual force:

"There are essential differences between individual and national rights to land which make it almost impossible to apply the well-known laws of real property to a territorial dispute. Whatever the primary origin of his rights, the national owner, like the individual owner, relies usually on effective control by himself or through his predecessor in title, for a sufficient length of time. But in the case of a nation, what is a sufficient length of time, and in what does effective control consist? In the case of a private individual, the interval adequate to make a valid title is defined by positive law. There is no enactment or usage or accepted doctrine which lays

down the length of time required for international prescription; and no full definition of the degree of control which will confer territorial property on a nation has been attempted. The great nations in both hemispheres claim, and are prepared to defend, their right to vast tracts of territory which they have in no sense occupied, and often have not fully explored. The modern doctrine of "Hinterland," with its inevitable contradictions, indicates the unformed and unstable condition of international law as applied to territorial claims resting on constructive occupation or control."1

The theory of occupation having been introduced into discussions relating to sovereignty; the doctrines of Roman law as to possession being employed to solve questions as to annexation and the like, it was necessary to introduce refined distinctions, and to make many fictitious assumptions in order to fit the theory to the facts: to conceive of occupations by a whole nation as conferring sovereignty, while occupations by individuals did not; to draw distinctions between occupation per universitatem and occupatio per fundos; between actual and constructive occupation and occupation by reason of contiguity.2

Fictions of all sorts were introduced into the discussion; and one of the most common was a supposed occupation by a people or nation as a whole. With few exceptions the writers of last century, influenced by Hobbes, Wolff, and Rousseau, assumed the existence of a state of nature prior to all property ; a condition from which men emerged by entering into one or more contracts; a theory which was historically fictitious, but to which, nevertheless, they resorted for the solution of fundamental difficulties. A variety of this theory was the assumption of a general occupation at some indefinite period by one people of the land of another. Grotius starts from a state of nature in which all things were in common, in which every one could take what he liked, and in which property was unknown; and then he proceeds to show how this condition of things ended and property was introduced pacto quodam aut expresso, ut per divisionem, aut tacito, ut per occupationem.3 A favourite assumption was that sovereignty was acquired as an incident to the occupation by "a nation" of a whole territory. An example of this fiction may be taken from Vattel:

"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 dominion."4

'Parliamentary Papers, 1896 [c. 8105], p. 12. Attempts have often been made to establish rules as to usucapio and prescription in the case of the acquisition of sovereignty; but those rules merely state vague analogies.

2 "Duo notanda sunt: duplicem esse occupationem, unam per universitatem, alteram per fundos. Prior solet fieri per populum, aut eum qui populo imperat, altera deinde per singulos" (De Jure Belli 2, 2, 4).

3 Ibid. 2, 2, 2.

4 I., c. 18.