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 (§ cciii.:)—“On dit qu’une chose est abandonnée, si simplement son maître ne veut pas qu’elle soit plus long temps sienne, c’est à dire, que l’acte de sa volonté ne contienne rien de plus que ceci, que la chose ne doit plus être à lui. D’où il paroit, que celui qui abandonne une chose cesse d’en être le maître, et que par conséquent une chose abandonnée devient une chose qui n’est à personne; mais qu’aussi long temps que le maître n’a pas l’intention d’abandonner sa chose, il en reste le maître.”
The same writer observes elsewhere (§ MCMXXXIX.)—“L’abandon requis pour l’usucaption, et pour la préscription qui en est la suite, ne se présume pas aussi aisément contre les nations qu’entre les particuliers, à 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.