than six sea miles from the coast" as belonging to a neutral state on the mainland for the purpose of measuring the maritime belt, free from belligerent operations, and Dana asserts that "islands adjacent to the coast, though not formed by alluvium or increment, are considered as appurtenant, unless some other Power has obtained title to them by some of the recognized modes of acquisition.'

Peru, following a suggestion of Lord Palmerston in 1834, asserted that the proximity of the Lobos Islands to Peru would give her a prima facie claim to them, although they were over twenty miles distant.5 A similar basis was offered by Venezuela as a claim to the Aves Islands," by Hayti to Navassa,' and among others, by Spain and later Argentine to the Falklands, although the latter are almost two hundred and fifty miles from the mainland. All of these claims gave rise to considerable controversy, the result of which seems to support Mr. Fish's contention in the Navassa case that the utmost to which the argument amounts "is a claim to a constructive possession, or rather to a right of possession; but in contemplation of international law such claim of a right to possession is not enough to establish the right of a nation to exclusive territorial sovereignty (Vattel, Bk. 1, Chap. xviii, sec. 208)," which, according to Mr. Webster in the Lobos Island case, must be supported by "unequivocal acts of absolute sovereignty and ownership." 10

4

Dana, note to Wheaton's International Law, sec. 178. See also Halleck, International Law, 1: 138; Westlake, International Law, 1904, 1: 116, who considers the possibility that an island, even within the three-mile limit, might be possessed by a non-contiguous state on account of prior occupation.

5 British and Foreign State Papers, 31: 1097; Moore's Digest of International Law, 1: 266, 575.

Mr. Marcy, Secretary of State, to Mr. Eames, Minister to Venezuela, January 24, 1855, Sen. Ex. Doc. 25, 34th Cong., 3d Sess., p. 4; Sen. Ex. Doc. 10, 36th Cong., 2d Sess., p. 225; Moore, 1: 571.

7 Mr. Fish, Secretary of State, to Mr. Preston, Haytian Minister, December 31, 1872; Moore, 1: 266, 577.

8 Decree of Buenos Ayres, June 10, 1829, British and Foreign State Papers, 20: 314.

9 Moore, International Arbitrations, 4: 3354; Moore, Digest, 1: 266..

10 Mr. Webster, Secretary of State, to Mr. Orma, Peruvian Minister, August

21, 1852, Sen. Ex. Doc. 109, 32d Cong., 1st Sess., p. 12; Moore, 1: 575.

(b) CONTINUITY

The continuity of unoccupied or savage territory with that occupied by a civilized state has been stated as grounds for territorial claims, especially in the modern "hinterland" and "sphere of influence" " theories. The colonial charters in America commonly granted jurisdiction "from sea to sea" 12 and Calhoun in 1844 felt able to assert: "That continuity furnishes a just foundation for a claim of territory, in connection with those of discovery and occupation, would seem unquestionable." 13

The present law, in view of the generally accepted Declaration of the West African Conference of 1885,14 would seem to justify no claims to territory beyond that effectively controlled, although the adjacent state may justly claim the right of notification, with an option to make good the constructive claim by actual occupation.

11 The term "sphere of influence" or 'sphere of action" has been employed in numerous agreements between European Powers to indicate uninhabited or savage regions upon which an option is gained by one Power as against the other. For references to these agreements, of which Great Britain has concluded some twenty with Germany, France, Portugal, Italy, Congo, and Russia since 1885, see Cobbett, Cases, 1: 113. Hall says, "The term sphere of influence... indicates the regions which geographically are adjacent to or politically group themselves naturally with possessions or protectorates but which have not actually been so reduced into control that the minimum of the powers which are implied in a protectorate can be exercised with tolerable regularity" (Higgins ed., 1917, p. 131). The term sphere of interest, on the other hand, has ordinarily been used to refer to particular interests within more or less civilized states, of states already having interests adjacent thereto. In these agreements geographical proximity has commonly been referred to. (Infra, notes 83 et seq.) On the "hinterland" doctrine, see Great Britain, note, June 14, 1890, Parliamentary Papers, Africa, No. 5 (1890), and regulations proposed by Sir Thomas Barclay, International Law and Practice, London, 1917, p. 73.

12 Papers relating to the Treaty of Washington, 5: 5, 21-22; Moore, 1: 265. 13 Mr. Calhoun, Secretary of State, to Mr. Pakenham, British Minister, September 3, 1844, Sen. Ex. Doc. 1, 29th Cong., 1st Sess., p. 149; House Ex. Doc. 2, ibid.; Calhoun's Works, 5: 432; Moore, 1: 264.

14 British and Foreign State Papers, 76: has not become a party to this convention.

19 (Arts. 34, 35). The United States Foreign Relations, 1885, p. 442; Moore,

1: 268. See also, Cobbett, Cases, 1: 108; Westlake, International Law, London, 1904, 1: 104; Hall, International Law, Higgins ed., p. 116.

(c) CONQUEST

The effective occupation of practically all available territory at the present time by civilized or semi-civilized peoples leaves little room for territorial expansion by a theory of propinquity, unless the theory embraces regions thus occupied.144 To assert that it does so, advocates have not been lacking.

President Johnson said, in 1868:

Comprehensive national policy would seem to sanction the acquisition and incorporation into our Federal Union of the several adjacent continental and insular communities as speedily as it can be done peacefully, lawfully, and without any violation of national justice, faith or honor. . The conviction is rapidly gaining ground in the American mind that with the increased facilities for intercommunication between all portions of the earth, the principles of free government, as embraced in our Constitution, if faithfully maintained and carried out, would prove of sufficient strength and breadth to comprehend within their sphere and influence the civilized nations of the world.15

As is indicated by the last sentence, these claims were doubtless closely associated with the thought of an idealistic expansion of the United States, regarded as an embodiment of the principles of federalism and representative government.15 a The Monroe Doctrine as a guarantee of the "free and independent condition" of peoples as

14a On rare occasions, territory has been voluntarily ceded on grounds of propinquity to the receiving state. Thus, by a treaty of July 1, 1890, Great Britain ceded Heligoland to Germany, the Marquis of Salisbury explaining that "It was probably retained by this country in 1814, because of its proximity to Hanover, the crown of which was then united to that of England." (Parliamentary Papers, Africa, No. 6 [1890].) By the treaty of April 8, 1904 (Art. 5), Great Britain ceded to France the Iles de Los, opposite Kanakry, the Marquis of Lansdowne explaining that "Their geographical position connects them closely with French Guiana and their possession by any power other than France might become a serious menace to that colony." (Martens, N. R. G., II, 32: 12. See also statement by M. Delcassé, ibid., 82: 48.)

15 Richardson, Messages, 6: 688; Moore, 1: 591. See also the remarks of Senator Douglas in 1845, quoted, A. B. Hart, The Monroe Doctrine, Boston, 1916, p. 133.

15a As in John Fiske's well known essay on "Manifest Destiny," American Political Ideas, New York, 1885, p. 151.

against "any interposition for the purpose of oppressing them" has readily lent its name to such an ideal, even as a doctrine of the world:

That no nation should seek to extend its polity over any other nation or people, but that every people should be left free to determine its own polity, its own way of development, unhindered, unthreatened, unafraid, the little along with the great and powerful.16

To a proposal by France and England in 1852 for a joint renunciation of "all intention to obtain possession of the island of Cuba" Secretary Everett refused, for geographical reasons:

The island of Cuba lies at our doors. It commands the approach to the Gulf of Mexico, which washes the shores of five of our States. It bars the entrance of that great river which drains half of the North American continent, and with its tributaries forms the largest system of internal water communication in the world. It keeps watch at the doorway of our intercourse with California by the Isthmus route.17

In the following year President Pierce took a more positive stand in his inaugural address:

The policy of my Administration will not be controlled by any timid forebodings of evil from expansion. Indeed, it is not to be disguised that our attitude as a nation and our position on the globe render the acquisition of certain possessions not within our jurisdiction eminently important for our protection, if not in the future essential for the preservation of the rights of commerce and the peace of the world. Should they be obtained, it will be through no grasping spirit, but with a view to obvious national interest and security, and in a manner entirely consistent with the strictest observance of national faith.18

Official declarations of an intention to annex territory by conquest have been rare in diplomatic history, but the thought that territorial propinquity may justify annexations, even by conquest, has doubtless been back of the tendency of all great states to expand their bounda

16 Infra, note 99.

17 Mr. Everett, Secretary of State, to Mr. Crampton, British Minister, December 1, 1852, British and Foreign State Papers, 44: 197; Moore, 6: 463.

18 Richardson, Messages, 5: 198. The Ostend Manifesto of 1854, which seemed to contemplate an extreme application of this policy, was virtually repudiated by the administration. House Ex. Doc. 93, 33d Cong., 2d Sess., p. 131; J. W. Foster, A Century of American Diplomacy, 1901, p. 346.

ries. Such a theory can only be generalized by limiting the right of territorial expansion of each state to natural geographic frontiers, as was done by Professor Burgess:

When a state insists upon the union with it of all states occupying the same geographic unity and attains this result in last resort by force, the morality of its action can not be doubted in sound practical politics, especially if the ethnical composition of the populations of the different states is the same or nearly the same. . . . Who does not see that the further rounding out of the European states to accord still more nearly with the boundaries which nature has indicated would be in the interest of the advancement of Europe's political civilization and of the preservation of the general peace? 19

Even the limits of natural frontiers have been abandoned by some more recent writers:

Strong, healthy, and flourishing nations increase in numbers. From a given moment they require a continual expansion of their frontiers, they require new territory for the accommodation of their surplus population. Since almost every part of the globe is inhabited, new territory must, as a rule, be obtained at the cost of its possessors is to say, by conquest, which thus becomes a law of necessity. The right of conquest is universally acknowledged.20

- that

Thus, as a justification for territorial expansion, propinquity ranges from a legal doctrine in the case of res nullius, through a quasi-legal doctrine in the case of territory occupied by savage or barbarous races, to a doctrine of real politik in the case of territory already under civilized or semi-civilized government. The latter doctrine is outside of the law, if indeed it is not directly contrary to it.21 Where a claim to nearby territory can be made good by occupation, the law will sanction it; where it can be made good by cession, the law will tolerate it; where only by conquest, the law opposes it.

19 J. W. Burgess, Political Science and Comparative Constitutional Law, Boston 1890, 1: 41. See also W. R. Shepherd, Proc. Am. Acad. of Pol. Sci., 7: 393.

20 F. von Bernhardi, Germany and the Next War, 1911, trans. 1914, pp. 21–22. 21 At the International American Conference of 1890, the delegates voted unanimously, "That the principle of conquest shall not, during the continuance of the treaty of arbitration, be recognized as admissible under American public law." (Minutes, p. 806; Moore, 1: 292.) The arbitration plan, however, never became operative. The United States Supreme Court has said, "A war declared by Congress can never be presumed to be waged for the purpose of conquest or the acquisition of territory." Flemming . Page, 9 How. 603 (1850).