meconnaitre la gravite. . . .

"Si la Russie ou la France, sans entente prealable,
sans communication aucune faite a l'Angleterre, envoyait
une escadre au Piree a l'appui d'une reclamation francaise
ou russe ; mettait les cotes de la Grece en etat de blocus ;
arretait les Mtiments sous pavilion grec, en un mot
mcnacait Ic repos d'un royaume dont l'independance a
ete placee . . . sous la garantie des trois puissances,
je n'hesite pas a dire que vous seriez le premier, milord,
a regarder ces actes comme gravement compromettants
pour la surete de l'etat dont la Grande Bretagne elle-
meme est l'une des puissances garantes."

1 76 S. P. 426, 429, 430, Granville to Waddington, 11 and 26
Nov. 1884.

2 39 S.P. 499, 22 Jan. (5 Feb.) 1850.



262 TERRITORIALISM [chap, vi

Lord Palmerston had told him that the measure
was one of mere reprisals, designed to secure satisfaction
for definite and limited claims. But Brunnow was not
to be deceived by words.

" Je vous ai represents, milord, que le blocus depasserait,
a mon avis, la limite ou les represailles, telles que vous
les entendez, toucheraient a l'etat d'hostilite envers
la Grece.

"... Quel que soit le motif qui serve de base aux
reclamations que vous mettez a la charge du Gouverne-
ment hellenique, la valeur de l'objet dont vous demandez
reparation n'est-elle pas en disproportion manifeste avec
la rigueur des mesures que vous avez adoptees pour
arriver a la satisfaction requise, dans la situation donnee ?"

And Nesselrode, concurring, wrote — l

" Votre Excellence se fera dimcilement une idee de l'im-
pression profondement penible qu'ont produite sur l'esprit
de l'Empereur les actes de violence inattendus auxquels
les autorites britanniques viennent de se porter contre
la Grece. ... En pleine paix, sans qu'aucun indice
precurseur des intentions du Gouvernement anglais ait
ete seulement donne, la flotte anglaise vient se poster
a l'improviste en face de la capitale de la Grece. L'amiral
Parker, accueilli amicalement par le roi Othon, deploie
des le jour suivant, vis-a-vis de ce souverain une attitude
comminatoire. De la veille au lendemain on charge en
ultimatum imperieux des reclamations de peu d'impor-
tance relative, qui se poursuivaient depuis des annees,
et dont quelques-unes se trouvaient deja en voie d'accom-
modement. Le ministre de l'Angleterre declare qu'il
ne s'agit plus de les discuter, d'en examiner le juste ou
l'injuste, mais qu'il y faut satisfaire pleinement dans le
terme de 24 heures, et ces 24 heures ecoulees, le Gouverne-
ment grec n'ayant pu se resoudre a plier sous ces con-
ditions humiliantes, le blocus des cotes de la Grece est
(iiilili, et Ton frappe immediatement de saisie les bati-
ments helleniques.

1 39 S.P. 613, Nesselrode to Brunnow, 7 (19) Feb. 1850.



chap, vi] RIGHTS IN ALIEN SOLO 263

" Chacun est juge de sa dignite, et ce n'est pas a nous
qu'il appartient de contester au Cabinet anglais la maniere
dont il croit devoir envisager et comprendre la sienne ;
l'Europe impartiale decidera en combien les moyens qui
viennent d'etre pris convenaient a une grande puissance
comme l'Angleterre vis-a-vis d'un etat faible et sans
defense, . . .

" L'Empereur vous charge, d'adresser sur cc sujet
des representations serieuses au Gouvernement anglais,
en l'engageant de la maniere la plus pressante a accelerer
a Athenes la cessation d'un etat de choses que rien ne
necessite et ne justifie, et qui expose la Grece a des dom-
mages comme a des dangers hors de toute proportion
raisonnable avec les griefs qu'on met a sa charge."

And he adds that the position of all powers with a
long sea-coast, be they powerful or weak, is gravely
disturbed by a measure which would put it into the
power of the sovereign of the seas to resort to arbitrary
force as and whenever convenient. 1

Even where there is an admitted right of interference
in the foreign territory, in the nature of a jus in alieno
solo, the difficulties of the situation are intolerable.

The difficulties which attend ex-territorial conceptions
nowhere exhibit themselves to better advantage than
in the case of Newfoundland.

Both France and the United States have claimed
such rights of entry on the Newfoundland coast ; and
the United States claim them also in Labrador. We
may deal with the American claims first. Throughout
the discussion, indeed, the British case is that these
were not rights in the soil — fragments of the sovereignty
over Newfoundland or Labrador — at all. The British
view is that they were merely British promises, which
must be enforced, if at all, through British force. On this
view, the rights of access to the coasts, conferred on the

1 See also W. P. Pain {Law Magazine and Review, Febr. 1897,
p. 196) and Atherley Jones [Commerce in War, 105-116) on the
whole topic of pacific blockade.



264 TERRITORIALISM [chap, vi

United States by the Peace of Paris, ceased on the out-
break of the war in 1812, when every other British promise
became invalid. If, on the other hand, they were
" real " rights, the restoration of the status quo in respect
of territory in 1814 replaced them where they were.
This illustrates the root-difficulty ; but it is not practically
important, because a new treaty was negotiated in
1818, which is the basis of all subsequent discussion.
Reciprocity treaties (of 1854 an d 1871) dealt with the
matter in connection with the general fisheries of British
North America and the United States. But the latter
treaty was revoked in 1885. The situation had become
exasperated by the clash of territorial rights.

On 6 Jan. 1878, according to the information of the
U.S. Minister, mobs of sixty to two hundred persons
attacked the fishing vessels at Fortune Bay, cut
their nets, threw out their catch, and necessitated
the return home in ballast of the boats, which thus lost
their voyage and the season's profits. 1 Lord Salisbury
justified this under the local law : but the whole question
was, whether the local law applied, or whether the
Massachusetts fishermen, acting in pursuance of treaty
rights of a " real " character, were not ex-territorial.
The local law prohibited using seines, Sunday fishing, and
" barring " fish : and they had done all three. Their
answer was that they had nothing to do with the local
law, which might conceivably impose any number of
restrictions upon fishing, and that they were exercising
an international right which the local law could not
limit or affect in any way. Mr. Evarts' brilliant des-
patch of 28 Sept. 1878, 2 lays this clown convincingly.
Lord Salisbury could only reply that if American fisher-
men were to break the local law because they believed
it contrary to treaty, Newfoundlanders might violently
restrain them in the opposite belief, and — " nothing but

1 72 S.P. 1266, Welsh to Salisbury, 19 March 1878.

2 lb. 1269, Evarts to Welsh.



chap, vi] FRENCH IN NEWFOUNDLAND 265

confusion and disorder could result." The British
Government therefore, he added, preferred to consider
that the loeal law was supreme, treaty or no treaty ;
if contrary to treaties, it should form the subject of
diplomatic complaint. 1 Obviously, this is the con-
venient course : the point is, is it all that the United
States had secured by the solemn grant of an apparent
jus in alicno solo ? Lord Granville 2 agreed with Lord
Salisbury that it was : that the grant of fishing rights
was to be understood subject to all " reasonable regula-
tions to which British fishermen are subject." He did
not, however, defend the Newfoundlanders — (as Lord
Salisbury appeared to have been inclined to do) — for
taking the law into their own hands, and he agreed to
indemnify the victims of their violence. Lord Salisbury
had refused this concession, but the offer of £15,000 by
Lord Granville was now accepted by the United States. 1
It was of course made solely on the ground of the mob
violence : and it is thus an admission, for what it is worth,
of the liability of a government for the unexpected acts
of riotous mobs in a remote colony. The reservation is
made — " for what it is worth " ; for the payment was
placed on that ground for convenience, and to veil the
real matter in dispute, which was the subjection of
Massachusetts citizens to the colonial law.

An even more dangerous situation was created vis-
a-vis France. By the Treaty of Utrecht, she was granted
the privilege of actually erecting huts for drying fish
on the Newfoundland shore. The French proceeded to
erect canning factories. It is readily seen what com-
plications result. Could the right of private owners
interfere with the advantages granted by the treaty ?
Obviously not : there would have been little point in a
mere permission to the French to build huts where they

1 72 S.P. 1275, Salisbury to Welsh, 7 Nov. 1878.

2 lb. 1298, Granville to Lowell, 27 Oct. 1880.

3 lb. 1308, 1321. They had claimed ^24,000.



266 TERRITORIALISM [chap, vi

could obtain leave to do so. That would have been an
undertaking similar to those contained in commercial
treaties, and merely amounting to a promise not to
put public obstacles in the way of French people who
wished to erect huts. It must have meant more than
this : for in 1783 it was expressly provided that British
settlements would be removed from that coast if they
should be formed. The development of the coast (which
was rich in minerals) was thus entirely put an end to.
Had the French Government asserted the claim that
their subjects were free from Newfoundland jurisdiction
and law while engaged in the exercise of their summer
rights, the situation would have been almost equivalent
to an alternate French and British occupation of the
district, recalling the celebrated arrangement concerning
Persephone. They did in fact assert, and sustain, the
claim (similar to that of the United States) that they
could carry out the provisions of the treaty for themselves,
and were not reduced to claiming damages against
Britain if they should be refused access. And, de facto,
the French fishery cruisers alone exercised jurisdiction
over the fishermen who landed on the Newfoundland
coast. 1

When the case became acute, in 1886, 2 the French
officers were instructed to disregard the jurisdiction of
the local judicial officer during the fishery season. Lord
Rosebery says that he — " cannot refrain from deprecating
particularly the claim put forward by [the French]
government to ignore during the fishery season the
territorial jurisdiction flowing from the sovereign rights
of the British Crown over the whole of the island." Never-
theless, the French officers seized fishing gear belonging
to British subjects on various occasions : they were
restored as a concession. 3 In 1888 * they forcibly pre-

1 79 S.P. 1 1 76.

2 lb. 1 185, Rosebery to Waddington, 24 July 1886.

3 lb. nyi. 4 lb. 1215.



chap, vi] " REAL " RIGHTS 267

vented the erection of a factory by British subjects :
Salisbury characterized this as quite indefensible : but
Waddington held ' — " que le droit de la France sur la cote
de l'ile de Terrc-Neuve reservee a ses pecheurs n'est
autre chose qu'une partie de son ancienne souverainete
sur l'ile qu'elle a retenue, en cedant le sol a l'Angleterre,
mais qu'elle n'a jamais ni inlirmee ni aliene."

The great controversy which then arose as to the
piscine nature of the lobster, and as to the propriety of
regarding lobster-canning factories as covered by the
permission to erect huts for drying fish, need not detain
us. Lord Salisbury, by a minute examination of historical
records and the language of the Treaty of Utrecht, 3
fairly rebutted the French theory of an original French
sovereignty whereof the retained fishery formed a frag-
ment. While he was penning his despatch, the French
gunboats Drac and Bisson were taking up British
lobster-traps, in the neighbourhood of H.M.S. Emerald?
and the British commander was ordering their replace-
ment. 1 Mr. Waddington details 5 the particulars in
which the lobster-fishing of the British firm interfered
with French operations. They took up space : they
frightened the cod-fish. He adds that it is not correct
to say that redress must be claimed through Britain and
that France cannot enforce her rights directly :

" Des droits reels, tangibles, nous ont ete concedes
par les traites ; nous avons la faculte d'en user en toute
liberte sans interruption ni trouble. Qu'un cas de trouble
on de gene se produise, nul que nous n'est en situation
de l'apprecier." This Lord Salisbury thought ' novel
and dangerous " ° doctrine, persistently declining to
admit the possibility of " real " rights in alieno solo.

1 79 S.P. 1232, Waddington to Salisbury, 7 Dec. 1888.

2 81 S.P. 949, Salisbury to Waddington, 9 July 1889.

3 lb. 969, 970.

4 82 S.P. 998. 5 lb., Waddington to Salisbury, 5 April 1890.
6 lb. 1000, Salisbury to Jusserand, 29 May 1S90.



268 TERRITORIALISM [chap, vi

In 1885 Great Britain occupied Port Hamilton.

" Under ordinary circumstances," said Lord Granville, 1
" H.M. Government would have desired to have come to
a previous understanding with the Chinese Government
on the subject. But in view of the probable occupation
of these islands by another power, H.M. Government
have " dispensed with that formality. Japan was con-
cerned to leam the news, 3 but the power most interested
was neither the suzerain nor the neighbour but the
territorial nation — Corea. China was offered the pay-
ment by Britain of the Corean tribute in respect of
Port Hamilton — but as Russia and Japan appeared
likely to follow the British example if any countenance
was shown to it, the offer was declined. 3 Corea sent
officers to protest on the spot, 4 who inquired " by what
authority and on what grounds this military occupation
of a portion of the territory of a friendly power has
been undertaken by the naval forces of Her Britannic
Majesty." And the Corean Foreign Minister 5 declared that
Port Hamilton — " is a possession of my government which
no other country has the right to trespass upon. ... It
is inconceivable that a government like that of Great
Britain, which attaches importance to the obligations of
comity, and has a clear perception of the requirements
of International Law, should act in a manner so un-
expected."

A very difficult situation was thus created. Other
powers were ready to help themselves to Corean territory
if the seizure should be legalized. Lord Salisbury
temporized, pleading the November elections. When
they were over, he asked if China would guarantee that
no one else should step in if Britain withdrew. 6 China
at first answered that it was not her practice to interfere
with her vassals in their territorial arrangements. 7

1 78 S.P. 143, Granville to Tseng, 16 April 1885.

2 lb. 144. 3 lb. 147. ' lb. 149, 151.
5 lb. 153. « 78 S.P. 157. 7 lb. 158.



chap, vi] EAST INDIAN TREATIES 269

Eventually, on receiving satisfactory assurances from
Russia, she consented to give the required undertaking. 1
On 27 Feb. 1887 the flag was hauled down. As a matter
of fact, the Admiralty held that the place would be only
an incubus unless converted into a first-class fortress.

The occupation was of course utterly and flagrantly
illegal. The only excuse was the old excuse for seizing
the Danish fleet — that if we did not take it, somebody
else would. Such attempted justifications are without
weight. It is better candidly to admit that the law
has been broken, and that the whole discussion is re-
moved into the sphere of morals. And on that exalted
plane, enlightened selfishness is very difficult to justify. 2

The formation of the British North Borneo Company was
the occasion of disputes with Holland and Spain. But as
they turned on the construction of treaties, it will not
be necessary to go very closely into their details. The
highly important point nevertheless arose of the applica-
tion of commercial treaties to protectorates. One very
potent argument which leads modern governments to
prefer protectorates or leases to annexation, interchange
of notes to treaties and " pacific " blockades to war,
is that under cover of an apparently novel institution,
they may escape the natural and necessary consequences
of their acts. Annexation involves the investment of
the population with the quality of subjects, entitled to
the constitutional rights of subjects. It involves the
incorporation of the territory with the national territory,
bound by the terms of treaties. Neither of these results
is very convenient to a state which wants to have a
free hand ; — just as the declaration of war is not con-

1 lb. 163, Walsham to Iddcslcigh, 5 Nov. 1886.

2 A possible ground of legal justification is the abnormal
position of Corea, absolutely without an effective voice in her
own affairs, and swayed by the alternate influence of one foreign
power after another. But this was hardly her position so early
as 1885.



270 TERRITORIALISM [chap, vi

venient to a nation which only wants to get its own
way by force, without embarrassment by neutral caution
or constitutional difficulties.

Consequently, Great Britain thought she saw her
way to pegging out a claim in North Borneo, which other
countries would have to respect, but in which they
could claim no treaty rights. Lord Granville went so
far as to admit to the Dutch negotiator that an actual
protectorate might alter the position : — but we were
only chartering a Company ! !

Holland and Britain had in 1824, by the Treaty of
London, agreed " to admit the subjects of each other
to trade with their respective possessions in the Eastern
Archipelago and on the continent of India, and in Ceylon,
upon the footing of the most favoured nation. . . ." 2
and that " no treaty hereafter to be made by either,
with any native power in the Eastern Seas, shall contain
any article tending " to exclude the trade of the other. 3
And Britain engaged to form no establishment on the
islands south of Singapore Straits : and that no treaty
should be concluded by British authority with their
chiefs. 4

Considering that the North Borneo Charter confirmed to
the Company the grant by which the Sultan of Borneo 6
nominated Baron de Overbeck Supreme Ruler of certain ex-
tensive territories, " with power of life and death over the
inhabitants . . . with the rights of making laws, coining
money, creating an army and navy, levying customs . . .
and all other powers and rights . . . belonging to Sovereign
Rulers," Lord Granville's contention seems futile in
the extreme. Baron de Sandenburg submits the situa-
tion to an acute analysis ' in an able despatch ; but
Granville was able to convince his successor that the

1 73 S.P. 1071, Granville to Stuart, 21 July 1880.

2 Art. 1. a Art. 3.

4 Art. 14. r ' 73 S.P. 1082 (29 Dec. 1877).

8 lb. 1087, Sandenburg to Bylandt, n Aug. 1881.



chap, vi] TURKISH^RIGHTS IN EGYPT 2J1

Company's operations would have no political operation. 1
At the same time it is more than ludicrous to find
the Foreign Secretary laying down in the compass of
one and the same despatch, that " there was no question
of a British Protectorate," and that " the Company offered
[and agreed] to submit to the control of H.M. Government
in the exercise of the powers derived from the Sultan." '

The Spaniards were a little later in taking action.
Their ground was the different one, that the Sultan
of Sulu as a vassal of Spain had no right to cede his
territory to the Company. 3 Into this contention of
suzerainty it is unnecessary to enter.

The Egyptian military revolt of 1881 produced natural
difficulties with Turkey, who saw an opportunity of
regaining her lost control over the Nile Province. Lord
Dufferin (it is hard to think he did so without irony)
disclaimed any wish on the part of the Dual Control to
put upon the Sultan's sovereign rights in Egypt any
restrictions beyond what was imposed already by treaty. 4
The Sultan, nevertheless, to the great disgust of the
Western powers, particularly France, sent an emissary
to Cairo, and Great Britain and France promptly fol-
lowed by sending ironclads to Alexandria, ostensibly
for the protection of their subjects in the disturbed
circumstances which they assumed could alone render
the Sultan's action necessary. 6 Lord Granville ' reiterated
the value of the Sultanic tie as a bulwark against the
ascendancy of any one power in Egypt.

The situation in Egypt was legalized by a Convention
with Turkey of 24 Oct. 1885. ' But an imeasy feeling
constantly existed which found expression in demands
that a date should be fixed at which the British troops

\ 73 S.P. 1094. 2 lb. 1054, Granville to Morier, 7 Jan. 1882.
3 lb. 1048. * lb. 1 142, Dufferin to Granville, 19 Sept. 1881.

6 73 S.P. 1 155, Dufferin to Granville, 11 Oct. 1881 ; 1157,
Granville to Dufferin, 14 Oct.

6 lb. 1 160 (4 Nov. 1881). Cf. supra, p. 184. 7 76 S.P. 442.



272 TERRITORIALISM [chap, vi

should be withdrawn. Salisbury now laid it down for
the first time ' that if the British went, they would
reserve the right to come back. " Other nations would
not permit the solvency of Egypt to be destroyed by
anarchy " — and (without showing why she could not
rest content in that belief) Great Britain must retain
the right to step in first, and to guard the state of things
brought about by her large sacrifices. The arguments
are mutually destructive. If all Britain wanted was to
secure Egypt's solvency, and if it was certain that some
power or other would see to that — why should Britain be
so particular about reserving a right of re-entry ?

A fresh Convention, fixing a three years' limit to the
occupation, with right of re-entry, was negotiated in
1887 with Turkey. France and Russia then represented
to the Porte the probability that they would respectively
feel obliged to do good in Armenia and Syria, if the
Convention went through. Thus the experience of
China and Corea was repeated by Turkey and Egypt. 2

The Sultan, by his Investiture of 27 March 1892, 3
renewed his declaration that the Egyptians were his
subjects, and that the Egyptian flag must be the same
as the Turkish.

We shall do no more than mention the great difficulty
which derogation from the principle of territoriality
occasions in the case of the Suez Canal (see 79 S.P. 533
et seq.).

A remarkable and peculiar case of territorial confusion
is presented by the case of the Portuguese privileges in
Surat. 4 These mercantile concessions, granted by the

1 78 S.P. 1063, Salisbury to Wolff, 15 Jan. 1887.

2 lb. 1 108, Wolff to Salisbury, 11 July 1887.

3 84 S.P. 637.

4 08 S.P. 1277. Leases and reversions, though not unknown
to the older law, are another source of difficulty. Who are
responsible for the use made of, and who is entitled to complain
of injuries done to, the leased territory ?



chap, vij MOSQUITO AND NICARAGUA 273

Mogul Emperors, were long respected by the British, but
were eventually found to be productive of more difficulties
to Great Britain than they could be of advantage to
Portugal. Britain therefore revoked them, and the
Portuguese contended that this was an actual invasion of
rights which existed independently of the British govern-
ment. If the privileges were treaty concessions, granted
by the native ruler, they disappeared with him. If
they were " real " rights, conceded by him as territory
might be ceded, they existed thenceforth independently
of his fate. Had he ceded a castle or a fort at Surat,
it would have been as inviolable as Goa or Pondicherry.
If his concession of privileges was more than a mere
matter of contract, it would be equally unaffected by
future events. And the contention that they were so
produced a most awkward and difficult situation. The
existence of " real " rights, other than the ownership
of territory, is inevitably the occasion of confusion.

Another awkward case of territorial complications was
the reservation of autonomy to the Mosquito Indians
when Great Britain recognized their territory as belonging
to Nicaragua. 1 Differences arose between Nicaragua
and Britain which were submitted in 1890 to the arbitra-
tion of the Emperor of Austria. 2 That sovereign gave
his award to the effect that — (1) the sovereignty of
Nicaragua is not full and unlimited within the given area,
but limited by the autonomy of the Indians ; (2) the
flag of Nicaragua may, however, be flown throughout
that area ; (3) and a commission appointed to protect
Nicaraguan " sovereign " rights therein ; (4) nor must
the Mosquito flag be flown there without some recognition
of Nicaraguan suzerainty ; (5) grants of rights to take