New Worlds and Th eir Challenges 129cultivated by its occupants— and the fi rst persons to undertake that worthy
chore became, ipso facto, the fi rst true occupiers and hence the legal own ers.
Th e erection of a fi xed dwelling could be a key piece of evidence for posses-
sion in this full sense, as well as the presence of rows of corn or wheat or the
like. Th is theory received some support in the eigh teenth century from the
eminent natural- law writer Emmerich de Vattel.
Another possible basis of title was conquest. Th is bore an obvious resem-
blance to just war, but with the crucial diff erence that it relied entirely on the
fact of defeat of the natives in war as the basis of title, without regard to
whether there had been a just cause for the war. Th is justifi cation, too, was
employed by the En glish, primarily in their early expansion eff orts. It was
the basis of En glish possession of Ireland, for example, dating from the
original invasion of 1175 (although papal authorization was also claimed for
the invasion). Conquest was also the source of En gland’s title to the Isle of
Man (from 1406) and to Wales (from 1536). It was natural, then, for the
En glish to invoke it for their American possessions, too. At least in the early
period of En glish colonization, in the seventeenth century, the colonies were
consistently described as “lands of conquest.”
Conquest, however, was problematic as a basis of legal title for several
reasons. For one thing, traditional just- war doctrine held that acquisitions
that lacked a preexisting iusta causa conferred no title, but were mere acts of
banditry. Also, En glish colonists themselves were generally disinclined to
base their title on conquest for a very practical reason: because, according to
En glish law, lands that were acquired by conquest belonged to the crown.
Th is meant that they could then be governed by the crown alone, as a matter
of royal prerogative, without any need for legislation by the parliament. It
meant, too, that titles to individual landholdings were granted at the plea-
sure of the crown, instead of inuring automatically to those who had actu-
ally hazarded life and limb to acquire them. Th ese considerations led the
En glish colonists to prefer occupation to conquest as their legal title. With
occupation, it is the occupier’s own eff ort that is the basis of the title— with
own ership then belonging to the occupier entirely in his own right.
Th e most secure possible route to a valid title was to acquire it directly and
explicitly by way of transfer from the natives. Th is would normally be
expected to be in exchange for something in return, but that was not a strict
legal requirement. Th e legal requirements for cession— again borrowing