In subdivision 4 of the Principles of Law given in the British Case (p. 149) it is said:

"As between two or more neighbouring and rival settlements, the line of division cannot be ascertained by any hard and fast rule applicable to all cases. A line must be looked for which shall divide the country in accordance with the principles which, upon a consideration of all the local circumstances, seem those of natural division. But great weight must also be given to the relative importance and presumable power of expansion in the direction of the vacant territory of the settlements, between which it is to be divided."

The rule here stated is that, if the second comer is more wealthy, populous and powerful than the discoverer, the territorial division is to be upon the lines of the relative importance and power of the discoverer and the intruder.

In the dispute between Great Britain and the United States as to the Oregon boundary, Great Britain was at the other end of the argument. Mr. Twiss (Oregon Case, p. 312) represents Mr. Gallatin, on behalf of the United States, as putting forward, as a consideration affecting title by contiguity, the superior ability of the United States to settle the territory. This theory was utterly rejected by Great Britain, and Mr. Twiss thus disposes of it:

"The reason which Mr. Gallatin alleged in support of the title by contiguity, namely, the facility with which the vacant territory would be occupied by the teeming population of the United States, is but the disguised appeal to the principle of the vis major, and strikes at the root of the fundamental axiom of international law, that all nations are upon a footing of perfect equality as to their obligations and rights."

The law writers do not allow a parity of right to the second

comer.

Twiss (Law of Nations, Sec. 128) says:

"When title by settlement is superadded to title by discovery the law of nations will acknowledge the settlers to have a perfect title; but when title by settlement is opposed to title by discovery, although no convention can be appealed to 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 the claim to disturb the settlement."

He then quotes Wheaton as basing a title by settlement on an implied intention of the discoverer to abandon the territory and a prescription by the settlers.

And in the next section he says:

"Title by settlement then, as distinguished from title by discovery, when set up as a perfect title, resolves itself into title by usucaption or prescription."

He then proceeds to show that the title rests upon the implied acquiescence of the discoverer, his silence after knowledge of long uninterrupted possession. He says the law of nations has not defined the length of time that will constitute a title by prescription and refers to the Hudson Bay dispute between France and England, where England claimed title by discovery, but also alleged against the French claim of discovery, an acquiescence in British settlement.

This author then distinctly discriminates between the settlements by a discoverer and settlements by a second comer. The latter he rests upon prescription, matured by the acquiescence of the discoverer. He cannot, however, be taken to acquiesce unless there has been an actual possession, and only so far as that has extended.

Fiore (Paris edition, 1885, Sec. 850), well points out that nonuser is not abandonment unless there be a clear intent to renounce title. But if one state cease to physically occupy or use a tract, and a second state, though without any right of possession, does actually take physical possession, and holds it with manifestations that are obvious, open and unequivocal (signi esteriori non equivoci), and this condition of things is known to the state which formerly had possession, and is tolerated by it; this, if continued long enough, proves an abandonment, and, as a legal consequence, legitimatizes the possession. This, Fiore thinks, is the true origin of international prescription.

We will try, then, to point out how far the British claims exceed her rights, even upon the theory that Spain had no other ad

vantage than such as belongs to the first comer; that each was entitled to hold only the lands it occupied and such further bounds as are, for one reason or another, allowed by the rules of international law to be attendant upon or appurtenant to the lands occupied.

In the very nature of things the first comer has this advantage. His constructive limits are not curtailed by those of any rival claimant. He is entitled, from the date of his settlement, to the widest constructive limits allowed by law.

The second comer can take only what is left; and none of the rules of constructive possession can be used by him to curtail the constructive occupation of the first comer.

Before any Dutch occupation in Guiana, Spain had settlements at Trinidad, Santo Thome and Essequibo. The first two of these were, when the Dutch came to Essequibo, peopled by Spaniards and held by Spanish officers and garrisons. Essequibo was not at the time actually occupied, but had not been abandoned.

From the time when the Spaniards first settled in Trinidad and in the Orinoco, the Essequibo was constantly visited by them; and a Spanish colony was actually established in that territory. Fortifications were erected, and the land was placed under cultivation for the purpose of producing bread for the Governor at Trinidad.

But, waiving at this point the consideration of the Spanish settlement in Essequibo, let us see what constructive limits the law assigned to the Spanish occupation of the Orinoco.

The first rule of law to which we call attention is thus stated by Hall (Int. Law, 4 ed., 110):

"A settlement is entitled not only to the lands actually inhabited or brought under its immediate control, but to all those which may be needed for its security."

This extract is quoted in the British Case, without dissent, and may, therefore, be taken as accepted:

Phillimore (Int. Law, 3d ed., i, pp. 337-338) says:

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They (the law writers) all agree that the Right of Occupation incident to a settlement, such as has been described, extends over all territory actually and bona fide occupied, over all that is essential to the real use of the settlers, although the use be only inchoate, and not fully developed; over all, in fact, that is necessary for the integrity and security of the possession, such necessity being measured by the principle already applied to the parts of the sea adjacent to the coasts, namely, ibi finitur imperium ubi finitur armorum vis. The application of the principle to a territorial boundary is, of course, dependent in each case upon details of the particular topography."

And Twiss (Law of Nations, Sec. 133), speaking of the rule of a mid-channel boundary, says:

"Circumstances however may create exceptions, as for instance when the control of a district not actually reduced into the possession of a nation is necessary for its security, and is not essential to the security of the coterminous state."

Spain, from the moment Trinidad and Santo Thome were settled, was entitled to the full application of this rule in her behalf. No settlement made thereafter by the Dutch could, by any constructive effect, in the slightest degree invade the limits given by the rule to Spain. That these limits leave the Dutch insecure, gives them no right to demand a new line. They might as well claim the right to push back the discoverer's line of actual occupation.

Let us now apply this rule to the case in hand. It gave to Spain as appurtenant to her settlements all territory and places that might reasonably be needed for their security and integrity. Surely we do not need to make an argument to prove that the occupancy of the mouth of the Orinoco by any other power was absolutely incompatible with the security, not only of Santo Thome, but of the Spanish settlements to the south of that river. It is wholly unworthy of discussion whether such an occupancy would have been a complete barrier to Spanish access from the sea to the Orinoco; or would only have made such access difficult and perilous. It is to us matter of great surprise that, admitting the rule we are discussing, Great Britain should put forward a claim

to Barima Point. Of the military and commercial results of the occupancy of Barima Point she was early advised. Indeed it is plain from Schomburgk's report that the unfair advantages to result therefrom had much to do with the line he proposed. He says (June 22, 1841):

"The peculiar configuration of the only channel (Boca de Navios), which admits vessels of some draught to the Orinoco, passes near Point Barima, so that if hereafter it became of advantage to command the entrance to the Orinoco, this might be easily effected from that point. This assertion is supported by Colonel Moody's evidence, who visited this spot in his military capacity in the commencement of this century." (B. C., VII, p. 13.)

He adds that to place some person of authority at this point would "command from the neighbouring States that respect to which a British colony like Guiana has full right."

The word "respect" seems here to be used in the sense of submission. It is the "respect" that a prisoner pays to his jailer.

In a confidential letter to Governor Light, written October 23, 1841, Schomburgk more fully explains the importance which attaches to Barima Point, and here discloses a stronger and doubtless the true reason for his attempt to fix the boundary at the Amacura. He shows that the Orinoco offers water transportation for from 400 to 500 leagues; that there are nearly 300 tributary streams of more or less importance which also serve as canals and facilitate commerce; that Santa Fé de Bogota may be reached within a distance of eight miles by one of these tributaries, and (to quote) that "operations of commerce or war, combined with others from the Pacific, could be carried on by means of the vast plains or llanos. A small fleet may go up the Orinoco and the Meta within 15 or 20 leagues of Santa Fé, and the flour of New Granada may be conveyed down the same way.

And the only access to this vast inland communication for sailing vessels of more than 10 feet draft of water is by means of the Boca de Navios, which is commanded from Point Barima.” (B. C. VII, p. 33.)