The Botany Bay Medallion

‘Hugh Grotius [1538-1645] remark[ed] that an act of discovery was sufficient to give clear title to sovereignty ‘only when it is accompanied by actual possession’. Cited, Henry Reynolds, Aboriginal Sovereignty, Three Nations, One Australia, Allen and Unwin, Sydney, 1996

Cape York, Possession Island:  On 22 August 1770 Lieutenant James Cook RN, in Australia’s far north at Possession Island in the name of King George III of England, Ireland, Scotland and Wales, claimed ‘discovery’ of the entire eastern coast of New Holland from ‘Cape York in the most northern extremity…to South Cape’.

‘The natives of the country…live in Tranquility which is not disturb’d by the inequality of condition; they covet not magnificent Houses, household stuff etc. They sleep as sound in a small hovel or even in the open as the King in His Pallace on a Bed of down’. Lieutenant James Cook, The Endeavour Journal

England –  July 1771: When Lieutenant James Cook RN returned home from the Endeavour voyage (1786-1771) he reported New Holland was inhabited.

Eighteenth century European law held; ‘only if uninhabited could one country take effective possession of another country, claim ownership for itself and share it out among its own people’.

‘Discovery gave what was termed an inchoate title which could only be developed further by actual occupation’. Reynolds. op.cit.

European law required if inhabited territory was to be invaded and conquered – – ‘effective[ly] occupied’ – by a foreign power, permission to use the land had to be sought. The rights of the conquered peoples were to be respected and treaty entered into.

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‘ACTUAL OCCUPATION’ OXFORD ENGLISH DICTIONARY – ‘EXISTING IN FACT

‘During the period 1763-1793 the character of the Second British Empire was being formed…the empire of commerce in the Indian and Pacific Oceans’. Vincent T. Harlow, The Founding of the Second British Empire 1763-1793, Vol. 2 Longmans, 1963

1771 – England: Lieutenant James Cook RN returned to England from the Endeavour voyage (1786-1771). He reported the island continent named New Holland by Dutch explorers, known now as Australia, was inhabited.

‘The natives of the country…live in Tranquility which is not disturb’d by the inequality of condition’. James Cook, Endeavour Journal

According eighteenth century international law only if territory was without inhabitants could it be claimed by another nation and taken over by citizens of that other nation.

‘The whole claim of sovereignty and ownership on the basis of terra nullius was manifestly based on a misreading of Australian circumstance, not that this prevented [Arthur] Phillip from hoisting the Union Jack in 1788 and expropriating the owners of Sydney Cove. Stuart Mac Intyre, A Concise History of Australia, Melbourne University Press, 2004  

England’s lawyers burned midnight oil as they sought to establish legal grounds that would allow Britain take ‘effective occupation’ from those in ‘actual occupation’ of New Holland.

To that end they studied the tortuous twists and turns of English law, laid down in the ‘Commentaries’ of Sir William Blackstone England’s leading jurist of that time.

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