128 Law and Morality Abroad (to ca. ad 1550)
and continuously governed them, other powers were free to step in, even if
the Spanish had been the original discoverers.
Th is argument against discovery as a basis of title was, however, only part
of the legal battle facing the non- Hispanic powers. It merely established the
negative proposition that Spain was not the own er of lands that it did not
actually possess and occupy. In those areas, the rival Eu ro pe an states were
free to move in. But the question then immediately arose: how were those
new powers themselves going to acquire positive legal title? To this conun-
drum, a number of answers were devised— each one with its distinctive set
of advantages and drawbacks.
Alternative Th eories of Title to Territory
One possible basis of title was occupation— occupation, that is, of land that
was unpossessed by anyone else at the time of the Eu ro pe an arrival. Th is
had deep roots in the Roman law of occupatio, which was held to be a prin-
ciple of the ius gentium rather than of the Roman civil law. In its original
application, it enabled a person to acquire full legal title to an object that
previously had no own er (a res nullius, in the technical Roman parlance).
Th e basic rule was that, once the unowned object was taken physically into
the custody or control of a person, that person thereby became the own er
(assuming that he also had the intention of acquiring own ership).
Th ere were, however, some serious problems with applying occupatio to
the conditions of the New World. For one thing, it was far from clear that
land could be acquired by that means. Th e Roman law on the subject had
concerned only movable objects. In the Carolingian period, however, French
monarchs had begun to extend the principle to encompass land. An even
greater puzzle was whether the New World territories could really be said to
be owned by no one, since native societies were present there when the Eu-
ro pe ans arrived.
To deal with this second problem, a variant of the occupation theory was
later devised, under such labels as the “settlement” or the “agricultural” the-
sis. According to this theory, which was much favored by British colonists, an
indigenous population that was nomadic, rather than settled, would not be
regarded in law as having either own ership or even mere possession of a ter-
ritory. Land could be regarded as being possessed only when it was being