ence. But, as they were nearly all in pursuit of the same object, it was necessary, in order to avoid conflicting settlements and consequent war with each other, to establish a principle which all should acknowledge as the law by which the rights of acquisition, which they all asserted, should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession. The exclusion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it." Marshall, C. J., Johnson . McIntosh (1828), 8 Wheaton, 543. See supra, § 16. See, also, Mr. Marcy, Sec. of State, to Mr. Thompson, Dec. 27, 1853, 42 MS. Dom. Let. 124. The English possessions in America were not claimed by right of conquest, but of discovery, and were held by the King, as the repre- . sentative of the nation, for whose benefit the discovery was made. When the Revolution took place, the people of each State, in their sovereign character, acquired the absolute right to all their navigable waters, and the soil with them. The grant from Charles II to the Duke of York of the territory which now forms the State of New Jersey, passed to the Duke the soil under the navigable waters as one of the royalties incident to the powers of government, which were also granted, to be held by him in the same manner and for the same purposes as this soil had been previously held by the Crown, and the same is true of the grantees of the Duke. And when these grantees surrendered to the Crown all the powers of government, the title to the soil passed to the Crown, and at the Revolution became vested in the State of New Jersey. "How far the mere discovery of a territory which is either unsettled, or settled only by savages, gives a right to it, is a question which neither the law nor the usages of nations has yet definitely settled. The opinions of mankind, upon this point, have undergone very great changes with the progress of knowledge and civilization. Yet it will scarcely be denied that rights acquired by the general consent of civilized nations, even under the erroneous views of an unenlightened age, are protected against the changes of opinion resulting merely from the more liberal, or the more just, views of after times. The right of nations to countries discovered in the sixteenth century is to be determined by the law of nations as understood at that time, and not by the improved and more enlightened opinion of three centuries later." Mr. Upshur, Sec. of State, to Mr. Everett, Oct. 9, 1843, MS. Inst. Great Britain, The ground taken by the British Government, that a discovery made by a private individual, in the prosecution of a private enterprise, gives no right, cannot be allowed. There is nothing to support it, either in the reason of the case or in the law and usage of nations. To say the least of it, if a discovery so made confers no right, it prevents any other nation from acquiring a right by subsequent discovery, although made under the authority of Government, and with an express view to that object. In no just acceptation of the term can a country be said to be discovered,' if its existence has been previously ascertained by actual sight. This is a mere question of fact, which a private person can settle as well as a public agent. But be this as it may, Meares himself was but the agent of a private trading company, without any authority whatever from his Government, so that, in this respect, his discovery stands upon no better ground than that of Captain Gray.”" Id. 165. “Discovery alone is not enough to give dominion and jurisdiction to the sovereign or government of the nation to which the discoverer belongs; such discovery must be followed by possession. All mankind,' says that eminent and impartial writer on international law, Vattel, have an equal right to things that have not yet fallen into the possession of anyone, 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,' continues the learned author, 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 their nation, and this title has been usually respected, provided it was soon after followed by a real possession.' (Vattel, Ch. XVIII., page 98, Philadelphia edition, 1849.)" Mr. Fish, Sec. of State, to Mr. Preston, Dec. 31, 1872, MS. Notes to Hayti, The right of discovery is not recognized in the Roman law unless followed by occupation, or unless the intention of the sovereign or state to take possession be declared or made known to the world. And it must be conceded that modern diplomatists and publicists incline to the opinion that mere transient discovery amounts to nothing unless followed in a reasonable time by occupation and settlement, more or less permanent, under the sanction of the state." Mortimer . N. Y. Elevated R. R. Co. (1889), 6 N. Y. Supp., 898. The fact that the discoveries of an American citizen first revealed the importance of the Congo country seems to justify this Government in claiming a special influence upon the determination of the questions touching all foreign arrangements for the administration of that region, especially as to its commerce.” Mr. Frelinghuysen, Sec. of State, to Mr. Chandler, Nov. 22, 1884, 153 MS. Dom. (2) SETTLEMENT. § 81. "By the law of nations, recognized by all civilized States, dominion of new territory may be acquired by discovery and occupation, as well as by cession and conquest; and when citizens or subjects of one nation, in its name, and by its authority or with its assent, take and hold actual, continuous and useful possession, (although only for the purpose of carrying on a particular business, such as catching and curing fish, or working mines,) of territory unoccupied by any other government or its citizens, the nation to which they belong may exercise such jurisdiction and for such period as it sees fit over territory so acquired. This principle affords ample warrant for the legislation of Congress concerning guano islands. Vattel, lib. 1, c. 18; Wheaton on International Law (8th ed.) sections 161, 165, 176, note 104; Halleck on International Law (3d ed.) c. 6, sections 7, 15; 1 Phillimore on International Law (3d ed.) §§ 227, 229, 230, 232, 242; 1 Calvo Droit International (4th ed.) sections 266, 277, 300; Whiton v. Albany Ins. Co., 109 Mass. 24, 31." Jones v. United States (1890), 137 U. S. 202, 212. "The law of nations will not acknowledge the property and sovereignty of a nation over any uninhabited country, except where actual possession has been taken and settlement formed, or of which it makes actual use. When navigators,' says Vattel, 'have met with desert countries, in which those of other countries had, in their transient visits, erected some monument 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.' (Book 1, Chap. XVIII., Sec. 209.)" Black, At.-Gen., 1859, 9 Op. 364, 368. "Martens wrote in 1789 to the same effect [as Vattel, supra,] in his Précis du droit des gens, § 37; and so did Kluber in 1819 in his Droit des gens, § 126. "The principle and rule to be deduced respecting title to unoccupied regions, or those in the possession of the aboriginal inhabitants, from the writings of the accepted teachers of public law, are that acquisition and title may be original and derivative; that original title includes discovery, use, and settlement, which are ingredients of occupation, and will constitute a valid title, but that derivative title comes of conquest, treaty, and transfer. My opinion is that the English title to sovereignty and dominion in the province of New Netherlands and the colony of New York was not original in this sense, but was derivative from conquest." Opinion of Mr. Sidney Webster on the law of marriage in New York in 1772. The claim of the English to title to New York by discovery has been criticised on the ground that neither of the Cabots landed in or near New York or saw its coast. The courts of New York, however, hold that what the English did was sufficient to give them title by discovery, and that such a title is superior to the Indian title. These decisions proceed upon the theory that the claim of the Dutch to title by discovery was contested by the English from the start, and that the English finally made good their claim by the sword. For this reason it is held that neither the Dutch nor the Roman law ever prevailed in the State of New York de jure, but that the common law of England is the source of the local law. This doctrine is not affected by the cases in which the validity of Dutch grants has been upheld as between individuals. Mortimer . N. Y. Elevated R. R. Co. (1889), 6 N. Y. Supp. 898, citing "Title by settlement, like title by discovery, is of itself an imperfect title, and its validity will be conditional upon the territory being vacant at the time of the settlement, either as never having been occupied, or as having been abandoned by the previous occupant. In the former case, it resolves itself into title by occupation; in the latter, the consent of the previous occupant is either expressed by some convention, or presumed from the possession remaining undisputed. * The last settlement, when confirmed by a certain prescription, may found a good territorial title. Again, the presumption of law will always be in favor of a title by settlement. Commodum autem possidendi in eo est, quod, etiamsi ejus res non sit, qui possidet, si modo actor non potuerit suam esse probare, remanet suo loco possessio; propter quam causam, cum obscura sunt utriusque jura, contra petitorem judicari solet.' (Inst. Lib. iv., tit. 15, § 4.) "Where title by settlement is superadded to title by discovery, the law of nations will acknowledge the settlers to have a perfect title; but where title by settlement is opposed to title by discovery, although no convention can be cited in proof of the discovery having been waived, still, a tacit acquiescence on the part of the nation that asserts the discovery, during a reasonable lapse of time since the settlement has taken place, will bar its claim to disturb the settlement." Twiss, The Oregon Territory, 123–124. See, also, Wheaton, Elements, Part II., chap. iv, § 5. Extent of pos session. The principles which are applicable to the case are such as are dictated by reason, and have been adopted in practice by European powers, in the discoveries and acquisitions which they respectively made in the New World: . . . The first of these is, that when any European nation takes possession of any extensive seacoast, that possession is understood as extending into the interior country, to the sources of the rivers emptying within that coast, to all their branches and the country they cover; and to give it a right, in exclusion of all other nations, to the same. The second is, that, whenever one European nation makes a discovery, and takes possession of any portion of that continent, and afterwards another does the same at some distance from it, where the boundary between them is not determined by the principle above mentioned, the middle distance becomes such of course. A third rule is, that, whenever any European nation has thus acquired a right to any portion of territory on that continent, that right can never be diminished or affected by any other power, by virtue of purchases made, by grants or conquests of the natives within the limits thereof." Messrs. C. Pinckney and Monroe, U. S. ministers, to Mr. Cevallos, Spanish "The two rules generally, perhaps universally, recognized and consecrated by the usage of nations, have followed from the nature of the subject. By virtue of the first, prior discovery gave a right to occupy, provided that occupancy took place within a reasonable time and was ultimately followed by permanent settlements and by the cultivation of the soil. In conformity with the second, the right derived from prior discovery and settlement was not confined to the spot so discovered or first settled. The extent of territory which would attach to such first discovery or settlement might not in every case be precisely determined. But that the first discovery and subsequent settlement within a reasonable time, of the mouth of a river, particularly if none of its branches had been explored prior to such discovery, gave the right of occupancy and ultimately of sovereignty to the whole country drained by such river and its several branches, has been generally admitted. And in a question between the United States and Great Britain her acts have with propriety been appealed to as showing that the principles on which they rely accord with her own." Mr. Gallatin, U. S. plenipo., to Mr. Addington, British plenipo., Dec. 19, 1826, |