American soil could be appropriated by whoever first found it. Although it was agreed by all that discovery must be consummated by possession and use, there were two very difficult questions, as to which the law was silent, in connection with the new situations now arising. One of these was the length of time which might elapse between discovery and taking possession, before the claim should become invalid through failure to consummate the discovery; while the other was that of the extent of territory involved by the above acts.[1]The claims of the three contestants were preposterous, though no one more so than another, perhaps; and, in the absence of any superior authority, it is difficult to see how the matter could have been settled otherwise than by power of the sword, which thus replaced the Pope as arbiter. At the time we are now considering, it would seem as if, theoretically, England's claim to any part of the New World were the least valid of the three. Although it was necessarily based solely on the voyage of Cabot, she had made no effort to colonize for nearly ninety years, and as yet had failed to do so successfully. To the south, Spanish titles were, in part, unassailable;[2]while in the north, French claims were being made good by the struggling colony at Port Royal, and by scattered traders in furs.
The treaty of peace with Spain, in 1604, which followed almost automatically upon the accession of James to the English throne, changed the situation in important respects with reference to the success of English colonization. Privateering, which, in spite of many brilliant exploits, had become "a sordid and prosaic business," and decreasingly profitable, came to a legal end temporarily under the English flag. It is true that certain of the larger venturers in the trade merely flew the Dutch flag instead, and continued their depredations; but the
- ↑ Cf. B. A. Hinsdale, "The Right of Discovery," in Ohio Archeological and Historical Quarterly, vol. ii, pp. 351-78; and Scaife, "International Law," pp. 269-93.
- ↑ The number of colonists living in Spanish possessions varies greatly in estimates. DeLannoy thinks that it may have been 152,000 by 1574 (DeLannoy and Van der Linden, Histoire de Y Expansion Colonialc des Peuples Europeens [Paris, 1907], vol. 1, p. 414); while Leroy-Beaulieu puts it as low as 15,000 in 1550. De la Colonisation chez les peuples modernes (Paris, 1898), vol. 1, p. 5.
