On this passage there is the following note:—“Le droit de propriété d’état peut, d’après le droit des gens, continuer d’exister, sans que l’état continue la possession corporelle. Il suffit qu’il existe un signe qui dit, que la chose n’est ni res nullius, ni délaissée. En pareil cas personne ne saurait s’approprier la chose, sans ravir de fait, à celui qui l’a possédée jusqu’alors en propriété, ce qu’il y a opéré de son influence d’une manière légitime: enlever ceci ce serait blesser le droit du propriétaire.”
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. “Præter animum possessionem desidero, sed qualemcunque, quæ 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., § 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.