162 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 



Olid coutentiou. If there is no rule to settle disputes, iiations would 

 be always at war; and consequently we find that, in respect to such 

 things as are not susceptible of ownership by individuals, if they are 

 objects of desire, if the sui)ply is limited, and if they are capable of 

 exclusive appropriation, they must be owned by some nation. Now that 

 I)rinciple in respect to nations finds its apt illustration in the case of 

 newly-discovered countries. When the New World was revealed to 

 the Old, there were vast tracts of the earth's surface which became the 

 object of contending- ambitious, and there would have been wide-spread 

 war among the different nations had there not been some rule by which 

 international strife could be appeased, a rule which ordained that every- 

 thing must be owned by somebody. It is there that we find the efficacy 

 of the title of first discovery. The rule was early established that the 

 nation that first discovered any new region should be regarded as hav- 

 ing a fixed and perfect title to it. Why should that be? Why should 

 the mere circumstance that the citizen of one nation had coasted along 

 the shore of a kitherto unknown region give his country as a nation 

 the power of enjoying the benefits of the discovery? Because the 

 nations felt the necessity of some rule which would prevent strife among 

 them ; and therefore the least circumstance giving a superior moral right 

 to one over another was recognized, and new territory was awarded to 

 the one who first discovered it. 



The President. Where did you find that rule! Did the mere fact 

 of discovery confer a title? That is not the law as it stands now. The 

 Conference which met in Berlin two years ago held that discovery 

 would not create title without occupation. 



Mr. Carter. I think that doctrine does not vary from the one I am 

 endeavoring to state. Of course, if a nation has discovered a new 

 region and has abandoned all intention of occupying it, it should not 

 be regarded as the owner of it, and such abandonment is evidenced by 

 the fact that the nation does not follow up discovery by occupation. 

 The faihire, after a sufficient lapse of time, to occupy the tract would 

 be considered as a relinquishment of the right to occupy. 



The President. The practical consequences are the same. 



Mr. Carter. Yes. I fully agree to the apparent modification sug- 

 gested by the learned President. Authority for the view I have just 

 taken will be found frequently stated by the writers on the law of nature 

 and the law of nations. It is very clearly put by Chief Justice Marshall 

 of the Supreme Court of the United States, in the noted case — in 

 America, at least — of Johnson v. Mcintosh, which will be found at page 

 56 of our printed Argument (quoting) : 



As the right of society to prescribe those rules by which property may be acquired 

 and preserved is not, aud can not bo, drawn into question; as the title to lauds, 

 especially, is, and must be admitted, to depend entirely on the law of the nation in 

 ■which they lie, it will be necessary, in pursuing this inquiry, to examine, not simply 

 those principles of abstract justice which the Creator of all things has impressed on 

 the miiul of his creature, man, and which are admitted to regulate in a great degree 

 the rights of civilized nations, whose perfect independence has been acknowledged, 

 but those priui/ijtles also which our own Government has adopted in the particular 

 case, aud given as the rule of decision. 



On the discovery of this immense continent, the great nations of Enrope were 

 eager to appropriate to themselves so much of it as they could respectively acquire. 

 Its vast extent att'orded an ample field to the ambition and enterprise of all; and the 

 character aud religion of its inhabitants afforded an apology for cousideriug them 

 as a people over whom the superior geuius of Europe might claim an ascendency. 

 The potentates of the old world found uo difficulty in convincing themselves that they 

 made ample compensation to the inhabitants of the new, by bestowing upon them 

 civilization aud Christianity, in exchange for unlimited independence. But, as they 

 were all in pursuit of nearly the same object, it was necessary in order to avoid con- 



