In uninhabited lands, a right of occupancy results from the discovery; but actual and bonâ fide possession is requisite to perfect appropriation. If real possession be not taken, or if taken shall not be retained, the right acquired by the mere discovery is not indefinite and a perpetual bar of exclusion to all others; for that would amount to discovery giving a right equivalent to annihilation. Moveable effects may be hoarded and kept out of use, or be destroyed, and it will not always be easy to prove whether with injury or benefit to mankind: but
the necessities of human life will not admit, unless under the strong hand of power, that a right should be pretended to keep extensive and fertile countries waste and secluded from their use, without other reason than the will of a proprietor or claimant.
Particular local circumstances have created objections to the occupancy of territory: for instance, between the confines of the Russian and Chinese Empires, large tracts of country are left waste, it being held, that their being occupied by the subjects of either Empire would affect the security of the other. Several similar instances might be mentioned.
There is in many cases difficulty to settle what constitutes occupancy. On a small Island, any first settlement is acknowledged an occupancy of the whole; and sometimes, the occupancy of a single Island of a group is supposed to comprehend an exclusive title to the possession of the remainder of the group. In the West Indies, the Spaniards regarded their making settlements on a few Islands, to be an actual taking possession of the whole, as far as European pretensions were concerned.
The first discovery of Columbus set in activity the curiosity and speculative dispositions of all the European maritime Powers. King Henry the VIIth, of England, as soon as he was certified of the existence of countries in the Western hemisphere, sent ships thither, whereby Newfoundland, and parts of the continent of North America, were first discovered. South America was also visited very early, both by the English and the French; 'which nations,' the Historian of Brasil remarks, 'had neglected to ask a share of the undiscovered World, when Pope Alexander the VIth partitioned it, who would as willingly have drawn two lines as one; and, because they derived no advantage from that partition, refused to
admit its validity.' The West Indies, however, which doubtless was the part most coveted by all, seem to have been considered as more particularly the discovery and right of the Spaniards; and, either from respect to their pretensions, or from the opinion entertained of their force in those parts, they remained many years undisturbed by intruders in the West Indian Seas. But their homeward-bound ships, and also those of the Portuguese from the East Indies, did not escape being molested by pirates; sometimes by those of their own, as well as of other nations.
CHAP. II.
Review of the Dominion of the Spaniards in Hayti or Hispaniola.