280 ROYAL SOCIETY OF CANADA 



discoverable. Its title is forever pre-empted, and will be sustained by the 

 law of nations. 



Title by discovery is so strong that it is not necessarily abrogated by 

 failure to occupy and colonize. An unoccupied island may be seized by 

 an expedition and be held until a standard or monument is found, or until 

 some other proof of prior discovery is presented, and then, according to the 

 usage of nations, possession must be given to the discoverer. A failure 

 to occupy is presumptive evidence of abandonment, but this presumptive 

 proof would yield as against positive proof of first discovery. One may 

 question the moral right of a man to possess land which he will neither 

 occupy himself nor allow another to occupy, but if his legal title is good 

 the state guarantees him possession. Morally, a great nation ought not 

 to claim territory it can not or will not occupy, but the waving of a piece 

 of bunting from a single flagstaff' will secure title in the court of nations. 



On the acquisition of territory in America, the principle was de- 

 clared that discovery by a European or civilized nation extinguished the 

 rights of the native and heathen occupants of that territory. Spain, 

 Portugal, England, France, Holland, each heartily accejjted this principle. 

 Tbe United States, as holder of derivative titles from these nations, claims 

 exclusive power to extinguish the right of occupancy possessed by the 

 Indians. If it were to be held that the right of occupancy conferred 

 upon the Indians the right to sell their property, then the tribes still liv- 

 ing could convey their title to lands in New York and in other states to 

 Great Britain. The latter being a civilized state, with an active and com- 

 petent government, could then proceed to introduce its laws, customs 

 and practices into such lands in New York and other states as it might 

 acquire from the Indians. We at once see the absurdity of arguing that 

 any absolute, complete and exclusive right to territory can reside in the 

 Indians. The exclusive right to the territory, within its borders, belongs 

 to the United States to-day, just as it belonged to Spain, and England, 

 and France, when they discovered it. 



Another principle adopted by the nations was that the title of the 

 discoverer should not be confined to the exact spot or place visited, but 

 might be extended to contiguous territory. The discovery of a part of 

 an island covered a claim to the whole island. No one would have dis- 

 puted the claim of Spain to the whole island of Cuba, although it was 

 not circumnavigated until after the death of Columbus. The discovery 

 of the mouth of a river generally covered with a vested interest the 

 region watered by it, even to its source, and often including its attluents. 

 Finally the principle was adopted that the discovery of a specific domain 

 upon the east coast of North America should give title to a continuous 

 territory running westward to the Pacific ocean. These principles were 

 adopted in council and applied in war. In the treaty made at Paris, in 

 the year 1703, and which terminated a long and bitter war, England's 



