AVES ISLAND. 337 



wliicli led tliem to sign the paper was tliat of compellifig the Ameri- 

 cans immediately to quit the island, if we are to attach any credit to 

 the declarations. Going off. therefore, they would have avoided the 

 consummation of the mischief, satisfying at the same time every wish 

 of Colonel Dias, and, indeed, their own wishes, which certainly did 

 not turn to a fight. This is evidently proved from the fact that when 

 on the 31st of December they were notified to leave, although they 

 were placed in more favorable circumstances than those in which they 

 stood at Colonel Dias's arrival on the island, there was no conflict, no 

 bloodshed, no killing, but there was a quiet departure from it. Be- 

 sides all this, had they voided the island from the beginning, they 

 would have stood on more favorable ground to advance their claim. 



Mr. Eames maintains that the term derelict appliecj to an island which 

 was known long time before but not reduced to any possession or in- 

 cluded in any jurisdiction — an island which he sometimes calls res 

 nullius — comes within the strictly legal and lexicographical meaning of 

 the word ; one which perfectly applied to Aves Island in June, 1854, 

 (perhaps July, see the declarations,) when the claimants commenced 

 taking out guano, and that there is no inconsistency in calling derelict a 

 thing that no one, that is, no power, either possessed or controlled. 



The inconsistency does exist, as will be seen. Things derelict are 

 things abandoned by the owner with the intention not to hold them 

 any further as his own, and which may thus be acquired by the first 

 occupant. The digest of the Eoman law, from which the expression 

 has been borrowed, thus lays it down : "Qwa ratione verius esse videtur, 

 si rem pro derelido a Domino liahitam quis occupaverii, statim eum 

 Dominum effid. Pro derelicto aidem habetur quod Dominus edmente 

 abjecerit ut id in numero rerum suarum esse nolit, idelque statim Domi- 

 nus ejus esse desinit." (Instit., lib, 2, tit. 1, § 47.) 



"The Digest, in a series of separate articles, lays down the principal 

 circumstances which verge into a lawful ground of possession : such 

 are those in which a man possesses * * * p^^g derelicto, 



when one possesses himself of a thing that has been abandoned. In 

 all these examples, if he who sold, donated, settled in dower, gave in 

 payment, or abandoned, was not the owner, then projoerty is not en- 

 tirely acquired, but there is a ground for prescription." (Ortolan, 

 Historical Explanation of the Institutes.) "Things that really belong 

 to nobody, res nidlius, are as follows : first, those of which man has 

 not yet possessed himself, or which he has entirely abandoned ; in the 

 second place, things segregated from human commerce, and which are 

 termed things of divine right, res divini juris. As to the first, they 

 are the objects which the owner casts off, because he no longer requires 

 them," &c., &c. (Ortolan, ibidem.) "The abandonment of a thing 

 made by any one with the will that it shall no longer be his, becomes, 

 for him who may possess himself of such thing, a just title^ a convey- 

 ing title, to the property ; he who abandons, tacitly consents that the 

 dominion of the thing which he foregoes shall pass over to him who 

 took possession of it." (Pothier on Prescription.) "If the owner 

 abandons anything movable or immovable, with the intent no longer 

 to include it in the tale of his possessions, whether because it be 

 Ex. Doc. 10 22 



