Section II., 1897. [ 279 ] Trans R. S. C. 



VIII. — The Cahofian Discovery. 



By John Boyd Thacher. 



(Communicated by Dr. Bourinot, and read June 23, 1897.) 



A people may acquire territory by discoveiy, by conquest, by pur- 

 chase. Title by discovery is said to be original. Title by conquest or by 

 purchase is said to be derivative. In the law of nations the title of dis- 

 covery confers sovereignty. It recognizes the warrant to extinguish the 

 rights of native occupants by conquest or by purchase. Sovereignty 

 which is shared can not be real sovereignty. To be real it must be ex- 

 clusive. Whenever, in the progress of civilization, new conditions have 

 been introduced, the nations have almost immediately formulated some 

 principle to govern those conditions and their consequences. The prin- 

 ciple has been announced and accepted before consequences could bring 

 dispute or disaster. In the nation itself, among the individuals, disputes 

 or disasters have preceded laws. But in the family of nations certain new 

 and unfamiliar conditions have suggested the possibility of certain effects 

 or events, to guard against which laws, written or unwritten, have been 

 proposed and allowed. With the discovery of the new world this prin- 

 ciple was established. It is true that before the middle of the 15th cen- 

 tury, two Popes had authorized Spain to send expeditions westward and 

 Portugal to make discoveries to the southward, and it is true that Alex- 

 ander YI., in 1493, drew a line from north to south, one hundred leagues 

 west of the Azores (subsequently increased by treaty to three hundred 

 and seventy leagues west of the Cape Verde islands), and gave to Spain 

 whatsoever lands she might first discover west of that line ; but it is also 

 true that, in after time, Spain presented as her strongest title to new 

 territory the abstract fact of prior discovery, and not the authority of the 

 papal bull. 



Discoveries have generally been made by expeditions sailing under 

 the directions and authority of some European nation, and the first 

 ceremonious act of the discoverer has been to plant upon the strange 

 shore the standard of his country. Thus, Columbus, immediately upon 

 landing on AVatling Island, unfurled the royal banner of Spain and took 

 possession for the king and queen. A discover}^ made by a private per- 

 son, in the i^rosecution of a private enterprise, would bestow sovereignty 

 on the nation to which he held fealty. That discovery would exclude 

 any other individual, or any other nation, from the possession of that 

 territory. After a land has once been seen by a discoverer, whether voj'ag- 

 ing for his king or for himself, whether equipped with a royal warrant 

 or sailing upon his own adventure, it is manifest that it can no longer be 



