It may be gathered from these writers, that to constitute a valid territorial title by occupation, the territory must be previously vacant (res nullius,) and the state must intend to take and maintain possession: and that the vacancy of the territory may be presumed from the absence of inhabitants, and will be placed beyond question by the acquiescence of other nations. If those conditions are fulfilled, the proprietary title which results is a perfect title against all other nations.
There are however several acts, that are accessorial to occupation, which do not separately constitute a perfect title. Such acts are Discovery, Settlement, Demarcation. Thus, discovery, may not be accompanied with any intention to occupy, or may not be followed up by any act of occupation within a reasonable time; settlement may be effected in territory not vacant; boundaries may be marked out which encroach upon the territory of others; so that acts of this kind will, separately, only found an imperfect or conditional title: their combination, however, under given circumstances, may establish an absolute and perfect title.
CHAPTER VIII.
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’ Précis 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 à quelque usage par un acte non passager, ou qui, se tenant sur ce fonds limité, il dise en présence d’autres hommes, qu’il veut que ce fonds soit à lui, il s’empare.” (Institutes du Droit des Gens, § 213.)
To this passage M. Luzac has appended the following note, pointing out the application of the principle to international relations:—