ON TITLE BY DISCOVERY.
Discovery not recognised by the Roman law.--Wolff.--The Discovery must
be notified.--Illustration of the Principle in reference to Nootka
Sound.--Vattel.--Discovery must be by virtue of a Commission from the
Sovereign.--Must not be a transient Act.--Martens' Precis du Droit des
Gens.--Kluber.--Bynkershoek.--Mr Wheaton.--Practice of Nations.--Queen
Elizabeth.--Negotiations between Great Britain and the United States,
in 1824.--Nootka Sound Controversy.--Discussions between the United
States and Russia, in 1822.--Declaration of British Commissioners, in
1826.--Mr. Gallatin's View.--Conditions attached to Discovery.--No
second Discovery.--Wolff.--Lord Stowell.--Progressive
Discovery.--Dormant Discoveries inoperative for Title.
Among the acts which are accessorial to occupation, the chief is
Discovery. The title, however, which results from discovery, is only an
imperfect title. It is not recognised in the Roman law, nor has it a place
in the systems of Grotius or Puffendorff. The principle, however, upon
which it is based is noticed by Wolff:--
"Pareillement, si quelqu'un renferme un fonds de terre dans des limites,
ou la destine a quelque usage par un acte non passager, ou qui, se tenant
sur ce fonds limite, il dise en presence d'autres hommes, qu'il veut que
ce fonds soit a lui, il s'empare." (Institutes du Droit des Gens, Sec. 213.)
To this passage M. Luzac has appended the following note, pointing out the
application of the principle to international relations:--
"Nous ne trouvons pas cette occupation dans le droit Romain. C'est sur
elle que sont fondes les droits que les puissances s'attribuent, en vertu
des decouvertes."
It will be seen from the text of M. Wolff, that the intention to take
possession at the time of discovery must be declared. The comity of
nations, then, presumes that the execution will follow the intention. But
the reason of the thing requires that the discovery should be notified at
the time when it takes place, otherwise, where actual possession has not
ensued, the presumption will be altogether against a discovery, or if
there had been a discovery, that it was a mere passing act, that the
territory was never taken possession of, or if so, was abandoned
immediately. Unless then the intention to appropriate can be presumed from
the announcement of the discovery, which the comity of nations will
respect,--if the first comer has not taken actual possession, but has
passed on, the presumption will be that he never intended to appropriate
the territory. Thus a discovery, when it has been concealed from other
nations, has never been recognised as a good title: it is an inoperative
act.
A case in point may be cited to illustrate the application of this
principle. Mr. Greenhow (p. 116) observes, in reference to the voyage of
Perez in 1775,--"The Government of Spain perhaps acted wisely in
concealing the accounts of this expedition, which reflected little honour
on the courage or the science of the navigators: but it has thereby
deprived itself of the means of establishing beyond question the claim of
Perez to the discovery of the important harbour called Nootka Sound, which
is now, by general consent, assigned to Captain Cook."
Vattel (b. i., l. xviii., Sec. 207) discusses this title at large:--
"All mankind have an equal right to things that have not yet fallen into
the possession of any one, and those things belong to the person who first
takes possession of them. When therefore a nation finds a country
uninhabited, and without an owner, it may lawfully take possession of it,
and _after it has sufficiently made known its will in this respect_, it
cannot be deprived of it by another nation. Thus navigators going on
voyages of discovery, furnished _with a commission from their sovereign_,
and meeting with islands or other lands in a desert state, have taken
possession of them in the name of the nation; and this title has been
usually respected, provided it was soon after followed by a real
possession."
According to this statement, the act of discovery must be sanctioned by a
commission from the sovereign, and the will of the nation to take
possession must be by its agent sufficiently made known. What acts should
be respected by the courtesy of nations, and be held sufficient to make
known formally the will of a nation to avail itself of a discovery, has
been a subject of much dispute. The tendency, however, both of writers and
statesmen, has been to limit rather than to extend the title by discovery,
ever since the Papal Bulls of the 16th century enlarged it to an
inconvenient extent, to the exclusive benefit of two favoured nations.
Thus Vattel:--"The law of nations will, therefore, not acknowledge the
property and sovereignty of a nation over any uninhabited countries except
those of which it has really taken actual possession, in which it has
formed settlements, or of which it makes actual use. In effect, when
navigators have met with desert countries in which those of other nations
had, in their transient visits, erected some monuments to show their
having taken possession of them, they have paid as little regard to that
empty ceremony as to the regulation of the Popes, who divided a great part
of the world between the crowns of Castile and Portugal."
To the same purport, Martens, in his Precis du Droit des Gens, Sec. 37:--
"Suppose que l'occupation soit possible, it faut encore qu'elle ait eu
lieu effectivement,--que le fait de la prise de possession ait concouru
avec la volonte manifeste de s'en approprier l'objet. La simple
declaration de volonte d'une nation ne suffit pas non plus qu'une donation
papale, ou une convention entre deux nations pour imposer a d'autres le
devoir de s'abstenir de l'usage ou de l'occupation de l'objet en question.
Le simple fait d'avoir ete le premier a decouvrir ou a visiter une ile,
&c., abandonnee ensuite, semble insuffisant, meme de l'aveu des nations,
tant qu'on n'a point laisse de traces permanentes de possession et de
volonte, et ce n'est pas sans raison qu'on a souvent dispute entre les
nations, comme entre les philosophes, si des croix, des poteaux, des
inscriptions, &c., suffisent pour acquerir ou pour conserver la propriete
exclusive d'un pays qu'on ne cultive pas."
Kluber, to the same effect, writes thus: (Sec. 126)--"Pour acquerir une chose
par le moyen de l'occupation, il ne suffit point d'en avoir seulement
l'intention, ou de s'attribuer une possession purement mentale; la
declaration meme de vouloir occuper, faite anterieurement a l'occupation
effectuee par un autre, ne suffirait pas. Il faut qu'on ait reellement
occupe le premier, et c'est par cela seul qu'en acquerant un droit
exclusif sur la chose, on impose a tout tiers l'obligation de s'en
abstenir. L'occupation d'une partie inhabitee et sans maitre du globe de
la terre, ne peut donc s'etendre plus loin qu'on ne peut tenir pour
constant qu'il y ait eu _effectivement prise de possession, dans
l'intention de s'attribuer la propriete_. Comme preuves d'une pareille
prise de possession, ainsi que de la continuation de la possession en
propriete, peuvent servir tous les signes exterieurs qui marquent
l'occupation et la possession continue."
On this passage there is the following note:--"Le droit de propriete
d'etat peut, d'apres le droit des gens, continuer d'exister, sans que
l'etat continue la possession corporelle. Il suffit qu'il existe un signe
qui dit, que la chose n'est ni _res nullius_, ni delaissee. En pareil cas
personne ne saurait s'approprier la chose, sans ravir de fait, a celui qui
l'a possedee jusqu'alors en propriete, ce qu'il y a opere de son influence
d'une maniere legitime: enlever ceci ce serait blesser le droit du
proprietaire."
It would be difficult to determine theoretically what would constitute a
sufficient sign that the territory is not vacant, or abandoned.
Bynkershoek, who was opposed to the continuance of proprietary right from
discovery, unless corporeal possession was maintained, subsequently
qualified his view. "Praeter animum possessionem desidero, sed
qualemcunque, quae probet, me nec corpore desiisse possidere." (De Dominio
Maris, ch. i., De Origine Dominii.)
Mr. Wheaton, in his work on International Law, (vol. i., ch. iv., Sec. 5,)
writes thus:--"The claim of European nations to the possessions held by
them in the New World discovered by Columbus and other adventurers, and to
the territories which they have acquired on the continents and islands of
Africa and Asia, was originally derived from discovery or conquest and
colonisation, and has since been confirmed in the same manner by positive
compact."
The practice of nations seems fully to bear out the theory of jurists, as
it may be gathered from the language of sovereigns and statesmen. Thus, in
reference to the northwest coast of America, on occasion of the earliest
dispute between the crowns of Spain and England, Queen Elizabeth refused
to admit the exclusive pretensions of the Spaniards. When Mendoza, the
Spanish ambassador, remonstrated against the expedition of Drake, she
replied, "that she did not understand why either her subjects, or those of
any other European prince, should be debarred from traffic in the Indies:
that, as she did not acknowledge the Spaniards to have any title by
donation of the Bishop of Rome, so she knew no right they had to any
places other than those they were in actual possession of; for that their
having touched only here and there upon a coast, and given names to a few
rivers or capes, were such insignificant things as could in no ways
entitle them to a propriety further than in the parts where they actually
settled, and continued to inhabit." (Camden's Annals, anno 1580.)
Such was the language of the Crown of England in the sixteenth century,
and in no respect is the language of Great Britain altered in the present
day. Thus, in reference to the negotiations between Great Britain and the
United States, in 1824, Mr. Rush, in a letter to Mr. Adams, of August 12,
1824, writes thus:--"As to the alleged prior discoveries of Spain all
along that coast, Britain did not admit them, but with great
qualification. She could never admit that the mere fact of Spanish
navigators having first seen the coast at particular points, even where
this was capable of being substantiated as the fact, without any
subsequent or efficient acts of sovereignty or settlement following on the
part of Spain, was sufficient to exclude all other nations from that
portion of the globe." (State Papers, 1825-26, p. 512.)
But the Spanish crown itself, on the occasion of the Nootka Sound
controversy, felt that a claim to exclusive territorial title could not be
reasonably maintained on the plea of mere discovery. Thus, in the
Declaration of his Catholic Majesty, on June 4, 1790, which was
transmitted to all the European Courts, and consequently bound the Crown
of Spain in the face of all nations, the following precise language was
employed:--
"Nevertheless, the King does deny what the enemies to peace have
industriously circulated, that Spain extends pretensions and rights of
sovereignty over the whole of the South Sea, as far as China. When the
words are made use of, 'In the name of the King, his sovereignty,
navigation, and exclusive commerce to the continent and islands of the
South Sea,' it is the manner in which Spain, in speaking of the Indies,
has always used these words,--that is to say, to the continent, islands,
and seas which belong to his Majesty, _so far as discoveries have been
made and secured to him by treaties and immemorial possession, and
uniformly acquiesced in_, notwithstanding some infringements by
individuals, who have been punished upon knowledge of their offences. And
the King sets up no pretensions to any possessions, the right to which he
cannot prove by irrefragable titles."
The pretensions of Spain to absolute sovereignty, commerce, and
navigation, had already been rejected by the British Government, and they
had insisted that English subjects, trading under the British flag, "have
an indisputable right to the enjoyment of a free and uninterrupted
navigation, commerce, and fishery; and to the possession of such
establishments as they should form, _with the consent of the natives of
the country, not previously occupied by any of the European nations_."
Again, the Crown of Spain, in demanding assistance from France, according
to the engagements of the Family Compact, rested her supposed title upon
"treaties, demarcations, _takings of possession_, and the most decided
acts of sovereignty exercised by the Spaniards from the reign of Charles
II., and authorised by that monarch in 1692."
It will thus be seen that Spain, in setting up a title by discovery,
supported her claims by alleging that the act was authorised by the Crown,
was attended with "takings of possession," and was confirmed by treaties,
e. g., that of Utrecht.
To a similar purport, in the discussions which took place between Russia
and the United States of America, in respect to the north-west coast of
America, which ultimately resulted in the convention signed at St.
Petersburgh, 5/17 April, 1824, the Chevalier de Poletica, the Russian
minister at Washington, in his letter of 28th February, 1822, to the
American Secretary of State, grounded the claims of Russia upon these
three bases, as required by the general law of nations and immemorial
usage among nations:--"The title of first discovery; the title of first
occupation; and, in the last place, that which results from a peaceable
and uncontested possession of more than half a century." (British and
Foreign State Papers, 1821-22, p. 485.)
To a similar purport the British Commissioners, Messrs. Huskisson and
Addington, in the sixth conference held at London, December 16, 1826,
maintained this doctrine:--"Upon the question how far prior discovery
constitutes a legal claim to sovereignty, the law of nations is somewhat
vague and undefined. It is, however, admitted by the most approved
writers, that mere accidental discovery, unattended by exploration--by
formally taking possession in the name of the discoverer's sovereign--by
occupation and settlement, more or less permanent--by purchase of the
territory, or receiving the sovereignty from the natives--constitutes the
lowest degree of title; and that it is only in proportion as first
discovery is followed by any or all of these acts, that such title is
strengthened and confirmed."
In accordance with the same view, the plenipotentiary of the United
States, Mr. Gallatin, in his counter-statement, which Mr. Greenhow has
appended to the second edition of his work, asserts that "Prior discovery
gives a right to occupy, provided that occupancy take place within a
reasonable time, and is followed by permanent settlements and by the
cultivation of the soil."
It thus seems to be universally acknowledged, that discovery, though it
gives a right of occupancy, does not found the same perfect and exclusive
title which grows out of occupation; and that unless discovery be followed
within a reasonable time by some sort of settlement, it will be presumed
either to have been originally inoperative, or to have been subsequently
abandoned.
It seems likewise to be fully recognised by the law of nations, as based
upon principles of natural law, and as gathered from the language of
negotiations and conventions, that in order that discovery should
constitute an inchoate title to territory, it must have been authorised by
the sovereign power, must have been accompanied by some act of taking
possession significative of the intention to occupy, and must have been
made known to other nations.
Thus Lord Stowell (in the Fama, 3 Rob. p. 115) lays it down, that "even in
newly discovered countries, _where a title is meant to be established_ for
the first time, some act of possession is usually done and proclaimed as a
_notification of the fact_."
There can be no second discovery of a country. In this respect title by
discovery differs from title by settlement. A title by a later settlement
may be set up against a title by an earlier settlement, even where this
has been formed by the first occupant, if the earlier settlement can be
shown to have been abandoned.
M. Wolff explains the reason of this very clearly (Sec. cciii.:)--"On dit
qu'une chose est abandonnee, si simplement son maitre ne veut pas qu'elle
soit plus long temps sienne, c'est a dire, que l'acte de sa volonte ne
contienne rien de plus que ceci, que la chose ne doit plus etre a lui.
D'ou il paroit, que celui qui abandonne une chose cesse d'en etre le
maitre, et que par consequent une chose abandonnee devient une chose qui
n'est a personne; mais qu'aussi long temps que le maitre n'a pas
l'intention d'abandonner sa chose, il en reste le maitre."
The same writer observes elsewhere (Sec. MCMXXXIX.)--"L'abandon requis pour
l'usucaption, et pour la prescription qui en est la suite, ne se presume
pas aussi aisement contre les nations qu'entre les particuliers, a cause
d'un long silence."
A title by second discovery cannot, from the nature of the thing, be set
up against a title by first discovery. The term _second discovery_ itself
involves a contradiction, and where the discovery has been progressive,
"further discovery" would seem to be the more correct phrase. A case can
certainly be imagined, where a later discovery may be entitled to greater
consideration than a prior discovery, namely, where the prior discovery
has been kept secret; but in such a case the prior discovery is not a
discovery which the law of nations recognises, for it has not been made
known, at the time when it took place, to other nations; and the
inconvenience which would attend the setting up of claims of discovery
long subsequently to the event upon which they are professed to be based,
would be so great, that the comity of nations does not admit it. The
comity of nations, indeed, in sanctioning title by discovery at all, as
distinct from title by occupation, has sought to strengthen rather than to
impugn the proprietary right of nations; but no territorial title would be
safe from question, if the dormant ashes of alleged discoveries might at
any time be raked up.