SCOTLAND'S RIGHT to CALEDONIA (Formerly called DARIEN) And the Legality of its Settlement, asserted in Three several Memorials presented to His Majesty in May 1699.  
BY The Lord Precedent of the Session and Lord Advocate, on behalf of the Company of Scotland, Trading to Africa and the Indies.  Quod enim est nullius, per occupationem acquiritur ejus Dominium. Puffend. de Jur. Nat. & Gent. 
Printed in the Year, 1700.   

The Three following Memorials were presented to His Majesty in May 1699. by the Lord Precedent of the Session, and Lord Advocate, on behalf of the Company of Scotland, Trading to Africa and the Indies, asserting the Legality of their Settlement in Darien.  

1st. MEMORIAL.  
THe Establishment of the Company of Scotland, Trading to Africa and the Indies, was first prepared by an Act of Parliament 1693. Inviting and Encouraging Persons in General, to enter into Societies, and Companies, for carrying on a Trade to whatsoever Kingdoms, Country or parts of the World, not being in War with His Majesty, and thereafter perfected by the Act of Parliament 1695, and a Charter thereon under the Great Seal, whereby the said Company was fully Settled with all the Powers, Privileges, and Immunities in use to be granted in such cases, and particularly with Power to plant Colonies, and build Cities, Towns, and Forts in Asia, Africa, or America, upon Places not Inhabited, or upon any other Place, by Consent of the Natives, and Inhabitants thereof, and not possessed by any European Prince or State.  
The Settling of this Company was so acceptable to the whole Kingdom, abounding always with Men, and of late Years, very desirous to enlarge Trade and Commerce, That the Company's Books being once opened, Subscriptions for a vast Sum were completed long before the Day prefixed by the Act of Parliament, and there were few Persons or Families of any Account within the Kingdom, who were not therein particularly concerned.  
But tho' the Subscriptions were soon completed, and the Advances made, as readily as proposed; yet the Directors and Managers, did proceed with great Deliberation, not being more Cautious to Conceal the Place where they were designed for, than Careful to make such a Choice, as might be exactly in the Terms of their Act and Patent, To wit, Either not Inhabited, or freely Consented to, by the Natives, and not possessed by any European Prince or State, and so liable to no Exception.  
In pursuance of these Resolutions, The Company prepared Men, and Provisions, and set out their Ships, and in the Month of November 1698, arrived on the Noth-side of the Isthmus of Darien in America, they pitched upon a Place never before possessed by the Spaniards; and after formal and distinct Treaties, obtained the Consent and  of all the Neighbouring Natives and People.  
The Spaniards and French raise a Clamour against the Settlement, as an Invasion of the Spanish Possessions and Dominions, in as much as the Place where the Company hath fixed, lies as it were in the Middle and Bosom of the Spanish Countries, having Carthagenae on the East, and Porto-Bello on the West, and Panama on the South, which is also alleged to be contrary to the Treaties betwixt the King of Great Britain and the King of Spain, whereby all these country's are yielded and conformed to the Spaniards  
If these parts of America had been wholly Void and Uninhabited, when the Spaniards made their first Discoveries, and Plantations there, the Question had certainly proceeded upon the head of Occupation, the only Ground acknowledged by all Lawyers to determine the Property of all Waste and Uninhabited Countries, where a formal Division hath not Interveened, as Grotius in particular, in his Second Book de jure Belli doth abundantly clear, and then the Spaniards must have further Subsumed, That as they found these Country's Waste, so they were the Occupiers and Possessors thereof; and in Special, that they were the first Occupiers and Possessors of the Isthmus of Darien, and the Place where the Company hath Settled, it being most certain, that Occupation gives no Right, save in so far as the Real and Actual Possession extends.  
But seeing on the other hand, it is Nottour, and by all Acknowledged, That the Spaniards did not find these Parts Waste, and Uninhabited, this Argument must necessarily fall; and all that the Spaniards can now Plead, is either present Possession, which the Company's Patent owns to be a sufficient Right to any European Prince or State, or the abovementioned Treaties, as exclusive of the King of Great Brittain's Subjects.  
For clearing then the Claim and Point of Possession, The Company denies that ever the Spaniard had any Possession of the Place where they have Planted; and it's obviously Incumbent to the Spaniard, if they allege Possession, to prove and instruct their Alledgance for the Company's Argument being Negative, viz. That the Spaniards did never Possess the Country where the Company hath Settled, it Undeniably proves itself, as all Lawyers affirm, unless the contrary, to wit, The Spaniards Possession, be evidently made out and proved, which is impossible; Nor do the Spaniards pretend to prove the same; But their Alledgance is, That in these large Countries of America, it were plainly Capricious to require the Actual Possession of every particular Place; But since they have the Uncontraverted Right and Possession of Carthagena, Porto-Bello, and Panama, which are the Extremities that in a manner environ the Isthmus of Darien, their Possession of these Places, must infer a Possession of the Interjacent Country in which the Company hath Settled, and consequently, that the Company hath Encroached upon, and Invaded their Right: And further, it's said, That the Spaniards have actually possessed Gold and Silver Mines in Darien, much nearer to the Company's Settlement than Carthgena, or these other Places, and have constantly been in use to Seize and make Prize of all Ships coming upon the Coast, betwixt Porto-Bello and Carthagena, as Invaders of their Possessions, tho' these Ships did really pertain to Friends and Allies:  
To all which, It is answered, 1mo. That the  Places belonging to the Spaniard, are very far distant from the Settlement of the Company, Carthagena above Fifty, and Porto-bello and Panama above Thirty Leagues, which Distances are more than sufficient to render Countries distinct, both as to Right and Possession. 2do. It's certain, that Carthagena, Porto-bello or Panama, cannot be understood to have unlimited Territories; if then their Territories be limited, it belongs to the makers of the Objection to show, that the Limits of these places do reach to, and comprehend the Place possessed by the Company, which neither the Spaniards, nor any for them, will ever be able to prove, by the Law of Nations, or any known Rule, or Custom in such Cases.  
It hath already been Noticed, That tho' these Countries had been wholly Void, when the Spaniards begun to Plant there, they could only by their Possession have appropriate as far as they did possess, and that what was not possessed, would have remained free, to be appropriated by the Occupation, and possession of any other People, a Rule Uncontraverted amongst all Nations on the Face of the Earth.  
But the Case of America being, That before any Plantations were Settled there, by the Spaniards, the Natives were undoubtedly the Possessors and Proprietors. It follows necessarily, That Colonies coming to Settle among them, must derive Right from them, and that either by Consent, Surrender, or Conquest, it being impossible in the case of Countries inhabited, there can be any other Manner or Mean of Acquisition; But so it is, That the Spaniards acquiring after this manner, neither could, nor can pretend to have Right to more than did pertain to the People where they Settled, whether by Consent, Surrender or Conquest.  
Whence it necessarily follows, That since Darien was a distinct Country, and the Inhabitants thereof a distinct People, from those Countries and Nations, where the Spaniards have hitherto Settled whether by Consent, Surrender, or Conquest; The Spaniards cannot pretend to extend their Right beyond that of their Predecessors, and the People & Country of Darien must still be as free from the Spaniards, as they were from their Predecessors; and consequently, that the Company coming to possess with the darians Consent, and by their Right, must be in the like Condition, and noways liable to either the Claim, or Complaint of the Spaniards, That the Country and Natives of Darien did never submit to, or were conquered by the Spaniards, must stand as a sure Position, unless the contrary be proven: But further, it is also certain, That the darians were never Repute to have any Dependency even on the great Empires of Mexico and Peru, much less upon the little places of Carthagena, Porto-bello, or Panama: Besides, The darians have been in frequent War with the Spaniards, since their first arrival into these Parts, and were never to this day Conquered: All which being attested by the English, and other Travellers, who have Written on this Subject; It appears to be beyond Controversy, That the Company having Settled with the Consent of these Dariens, must have the same Right, with the same Privileges and Freedom of Trade which the darians had, and that both are equally free from all the Spanish Pretensions.  
It is a known Case that an English Man one Sharp, having joined with the darians against the Spaniards, invaded their Territories; he was accused by the Spaniards in England, as guilty of Robbery and Piracy, but was acquitted, because he acted by Commission from one of the Darien Princes, which is an undeniable Evidence, that this Prince and his Country were judged to be independent on the Spaniards.  
The Spaniards may also have wrought Mines of Gold and Silver within the Isthmus; but no such possession can support their Complaint: The nearest possession of Mines that they can pretend was in Captain Diego's Country, on the Gulf of Darien, more than 15 Leagues distant from the Company's Settlement: Neither did the Spaniard get these Mines by Conquest, or Purchase, but by a plain stipulate Permission from Captain Diego, and his people, which changed not the Property; And upon Breach of Conditions, the Spaniards were quickly cast out, so that when the Company came to settle on the Isthmus, it was fully cleared of the Spaniards & all their pretences.  
Carthagena, portobelo and Panama, are adjacent to, and do in a manner environ the Isthmus of Darien; But that this Vicinity gives to the Spaniards no Claim of Right, is evident from many Instances; Tangier, Cheuta and Mamora, lie in the Bosom of the Empire of Morocco, and yet belong to European Princes; The English and French have Neighbouring Settlements upon the River Gamba in afric, and all along the Coast of afric the English and other European Princes have their Settlements intermixed and contiguous, where they Trade with all Freedom, without any mutual Impeachment. The English and French have both Plantations upon the Island of Newfoundland, and the Dutch in time of Peace settled upon Long-Island, and the adjacent Country environed on all hands by the English Plantations, and yet no War ensued, but the Dutch continued their possession till the Exchange was made for Suranam.  
The Spanish Fleets do necessarily pass betwixt the Cape of Florida belonging to the Spaniards, and the Bahama Islands, yet the English possess themselves of the said Islands, and have also several times settled at Port-Royal in the bottom of the Bay of Campiechy in the Gulf of Mexico, for cutting of Logwood, and have thence removed and settled again at their pleasure. The French have also endeavoured to settle in the Bay of Mexico, and lately and more closely in the Samblas' Islands on the Coast of Darien; They likewise settled a Colony in Petitguavis in Hispaniola, and in Guiana on the Continent, notwithstanding of the Vicinity of the Spaniards. The Dutch and Portuguese have their Respective Plantations on the Coast of Brasil, to which the Spaniards pretend Right as well as to the Isthmus of Darien, such as the Islands of Curasao, and Bowane, near to Carthagena on the East, and Suranam and others upon the Continent, and yet never quarrelled. It is granted that the Spaniards in their excessive Jealousy, and upon the Pretext that by Treaties, none were to Trade in their Ports or Harbours, such as Carthagena, and Porto-bello without their Licence, have seized and made prize of the Ships that they have found upon the Coast betwixt the said Places; But first, they did this upon pretext of the said Treaties. Secondly, Injury and Violence make no Right.  
And thirdly, it is most certain when the Spaniards have been overcomeand beat off in such Attempts, and forced to suffer both Dutch and English to cut Logwood on that Coast, yet the Spaniards did never complain of any Violation of Right, as knowing perfectly they had none, as may be seen in Dampier, Wafer, and other writers.  
The Spaniards at first endeavoured to amuse the World, with the Pope's Gift of the West-Indies, and after the King of Spain's becoming King of Portugal, and in the Right of that Crown, claiming the Benefit of the Pope's Gift of the East-Indies, he assumed the Magnific Title of Indiarum Rex: Yet he was never able to make good his Right, or exclude others by these empty Names; but in all Competitions the Pretensions of Spain, did either resolve in Occupation of what was void or surrendered, or conquest of what was possessed by Natives; and that Title was never much regarded, either by Spain, Portugal, or any other Prince Popish or Protestant.  
The second Head which may be pleaded for the Spaniard, is, the Treaties that have been betwixt the Crowns of England and Spain. But 1mo. Granting that the Kingdom of Scotland will never disown any Treaty betwixt their King (whom GOD long preserve and prosper) may be concerned, where are these Treaties that exclude either the Scots or English, from possessing Darien? if not inhabited, or where Inhabited, with consent of the Inhabitants? If the Spaniard propone upon these Treaties, they must produce them. 2do. All to be found in the latter Treaties betwixt the said Crowns, such as the Treaty 1667, and the Treaty 1670, which may be understood to be the only Regulating Treaties in this Matter, is that in the former, The King of Spain obliges himself not to molest the King of England, or his Subjects in their Plantations in America, these particulars enumerated not by way of Exception, but because some of them had been controverted. And that in the other Treaty 1670, It is agreed in the 7th. Article, That the King of Great Britain, and His Heirs and Successors, shall have, hold, and possess, with full Right of Empire, Property, and Possession, all Lands, Regions, Isles, Colonies, and Lordships, situated in the West-Indies, or any part of America, which his said Majesty, or his Subjects, did then hold or possess, So that no controversy on any pretence, was thereafter to be moved on that Subject. And in the eight Article, That the Subjects of the said King should abstain from all Commerce, and Navigation, in the Ports and Places, having Forts, Castles, or Staples for Merchandise, possessed by either of them. To wit, That the Subjects of Great Britain should not Trade, nor Sail to the Ports nor Places, which the King of Spain hath in the West-indieses, nor the Subjects of the King of Spain, Trade nor Sail to the Places, which the King of Great Britain there possesses, without Licence given hincinde, in the Terms therein set down. By which it plainly appears, that all agreed to, was, and is, That the Kings and their Subjects respectively, should forbear Injuries, as likewise to Trade and Navigate without Licence in the Ports, Castles, and Staples, to either of them belonging, which can no ways exclude the King of Great Britain and his Subjects from Trading, or making new Plantations in to such Places in America, as either are not inhabited, or where the King of Spain hath no Right. The Spaniard may positively pretend, that the Treaties provided to the King of England, and his Subjects of certain particular Places, and generally what they then possessed in the West Indies, may be construed an Exception, and import (as it were) an Acknowledgement, that the rest of the West Indies did belong to the Crown of Spain. But, 1mo, The Places provided to the King of England and his Subjects are only enumerate for the greater Caution and Security, because some of them had been taken from the King of Spain, and thereupon controverted. And, 2do, It is evident by the foresaid eight Articles, the Reserve of Trade is equally and mutually provided, and restricted to the King of Great Britain and the King of Spain, their respective Possessions; so that nothing can be elicit from these Treaties, to give the King of Spain the Right to the whole West Indies, excepting the foresaid places possessed by the King of England, nor to tie up the King of Britain and his Subjects, from making new lawful Acquisitions in these Parts. But it is agreed to, That they should secure the one, the other in their respective Possessions; And thus these Treaties have been always understood, nor have they hindered the English to enlarge their Possessions in the West Indies upon 〈◊〉 Occasions, which certainly belongs as much if not more to the Scots.   

2d. MEMORIAL, By the same.  
THe Company of Scotland Trading to Africa and the Indies, having by the other Memorial, endeavoured to clear the Justice of their Proceed, as to their Settling a Plantation in the Isthmus of Darien in America, do further in all Humility Represent,  
1mo, That there was never any Enterprise of a more National Concern, than the foresaid Plantation is to the Kingdom of Scotland, the Erecting and Establishing of the said Company, was the Unanimous Desire and Satisfaction of the Nation, all Persons almost, and Families of any Consideration, did readily subscribe for, and advance considerable Sums, for carrying on the Designs of the Company, much above what could have been expected. The Success the Company hath had, in overcoming Difficulties, and fixing upon a Place that appears so advantageous to Trade and Commerce, hath likewise raised the Expectation and Desire of its Continuance and Prosperity, to a far higher Degree than ever was known in any Business of this Nature: And, Lastly, it is most certain, That nothing could be more Grievous and Afflicting to the whole Nation, without Exception, than that this Undertaking, so far and so happily advanced, should meet with the least Discouragement, especially from such, whose Countenance and Assistance is so earnestly craved.  
2do, It appears from the whole Circumstances of this Affair, That the English Nation can have no Prejudice, but rather Advantage by the foresaid Undertaking: For, First, If it shall be profitable, the Profit evidently redounds to their Fellow Subjects and good Neighbours. Secondly, The English have free Access, to come in and partake of the Profit, when they please. Thirdly, The Product of the Place is probably like to consist neither of Tobacco nor Suggars, the great Commodities of the English Plantations, but of such Goods and Commodities, as the English do not afford. Fourthly, It is true, That by the Act of Parliament, and Patent of the Company, all Ships employed by the Company, are to return to the Kingdom of Scotland with their Effects: But it is as true, That the said Act and Patent did bear the Liberty and Privilege of a Free Port, and Mercat for all Strangers that shall be pleased to Trade with them, who are not under the foresaid Obligation, but may come and go with their Return whether they please, which cannot but be of Advantage to the whole English Plantations, as to a Free Course of Trade. Fifthly, It is likeways granted, That by the foresaid Act of Parliament, the Ships, Goods and Effects whatsoever belonging to the said Company, are declared free of all Customs and other Duties, for the space of 21 Years, but then four of the said Years are already run, and this small Encouragement was needful to begin so great a Work, whereof probably the Profit can little more than equal the Expenses for all that space; And besides, the Duties of Tobacco and Sugar, not of the Growth of the said Plantation, are excepted, and not discharged: And also it is evident, That if the Plantation prosper, the foresaid short Discharge of Customs, and other Duties, will be richly compensed by the great Increase of Trade, and consequently of His Majesty's Customs, that may for thereafter be thence expected. And, Sixthly, The Company and Plantation cannot reasonably threaten any Diminution of His Majesty's Customs in England; but on the contrary, this Plantation promising a new Trade, far different from the Trade of all the English Plantations, and offering to all, the Liberty of a Free Port, must rather increase the Trade of England, both to the King and Subject's Advantage.  
As for the Objection, That the Company, by the Immunity they have from Customs and Duties, may Import, and then as freely Export, and so undersell any other Nation, during that Immunity: It's Answered, That the Company in England have almost the same Privilege, since, if they please to Export after their Return from the Plantations, they are allowed to do it freely with a full Draw-back, excepting only 3 or 4 per Cent.  
3tio, It is with Submission Represented, That in all Appearance, if the Company of Scotland had not seized the foresaid Post in Darien, the French had certainly taken it: And now, that it is discovered to be so advantageous for Trade, it is not to be doubted, but that the French, who show such Earnestness to have the Scots excluded, will certainly, if any such thing should happen, possess themselves of it, not only to the Hurt of the English Plantations, but to the far greater Prejudice, if not the Ruin of the Spaniards Interest in the Indies.  
And therefore, All things truly and justly considered, it is hoped, that not only the English will become more and more favourable to so good a Design, but that even the Spanish will the more easily acquiesce to Reason and Justice, that they see a more Powerful Competitor ready to catch hold of an Advantage, that cannot be so safe for them in the Hands of any other Nation, as in the Possession of the foresaid Company.   

3d. MEMORIAL, By the same.  
THe Company of Scotland Trading to Africa and the Indies, being endued with very ample Privileges, hath settled a Colony at Darien, a Country very fit and proper for that purpose, not only for the Richness of the Soil and Mines, but likeways by its Situation for Trade.  
The Spaniards have the most considerable Interest and Plantations in America, and are not willing, that any other Nation, or People should have share of the Advantages and Benefits they draw from thence, which is not Singular in the present Case, because they have ever withstood all Planters, either upon the Continent, or American Islands, by Acts of Violence and Hostility, as if every Settlement in America were an Encroachment upon the Right of Spain.  
There is lately a Memorial offered in behalf of the King of Spain, to one of the Secretaries of State of the Kingdom of England, to the Effect following.  
My Lord Ambassador of Spain finding himself obliged, by express Order, to represent to His Majesty of Britain what follows, Prays Mr. Vernon to represent to his said Majesty, That the King his Master, being informed from several parts, and last of all, by the Governor of Havana, of the Insult and Attempt of some Scots Ships, equipt with Men and Ammunition necessary, who endeavours to post themselves in the Sovereign Dominions of His Majesty in America, and particularly in the Province of Darien.  
His Majesty received this Information with Dissatisfaction, as a Mark of little Amity, and a Rupture of the Alliance which is betwixt the two Crowns, which His Majesty hath always observed very Religiously, and from which so much Advantage and Profit hath resulted, both to His Majesty and his Subjects, after which good Correspondence, His Majesty did not expect such sudden Attempts & Insults from His Majesties Subjects, and that in time of Peace, without any Pretext or Cause, in the most inward part of his Dominions.  
All that the King desires, That this be presented to His Majesty of Britain, and that His Majesty is very sensible of such Hostilities and Unjust Procedures, against which, His Majesty will take such Measures as are convenient.  
London, May 3d. 1699.  
THe Charge is great, and if it can be made appear, that the King of Spain is Invaded, as is pretended, it is but Reason there should be just Reparation.  
It must be acknowledged, That it is a fair way of dealing, that the Spanish Rights and Pretensions are thus asserted by Memorial, and an Opportunity afforded, and that the whole World may be satisfied, that His Sacred Majesty, the King of Great Britain, hath granted no Patent to His Subjects in Scotland disagreeable to Treaties with Spain, and that the Scots Company have not exceeded the Limits of their Patent, to the prejudice of Spain.  
There may be many Reasons offered to satisfy Spain, and all other Nations of Europe, except the French, that if the Scots had not settled in that Isthmus, or if they were now to remove from it, the same would be possessed by another People, more dangerous to the Interest of Spain, and in due time it may be made appear, that the Scots Settlement is for the Honour of the King, & the Interest of England, but the present design is only to satisfy the World, that the Patent granted by His Majesty, was agreeable to the Treaty with Spain, and that the Scots Company have not exceeded the Terms of their Patent, and that they have Right to what they possess in the Isthmus of Darien, according to the Law of Nations, and that most part of the Nations in Europe have settled Plantations in the American Islands, or Continent, upon no other Foundation than the Scots.  
It is the Interest and Policy of all Governments, to improve the Natural Product of a Country, and to encourage Foreign Trade.  
The Experience of all Nations makes appear, That nothing contributes so effectually to these ends, as Foreign Plantations.  
Scotland is amongst the last of the Nations of Europe, in settling Foreign Plantations, tho' there be few that can propose more Advantage that way, because the Nation affords many Subjects of Manufacture, and abounds in Men, which is the greatest Riches, as well as the Strength of a Nation; Yet for want of Foreign Plantations, many have been useless and burdensome to their Native Country, and have been constrained to serve Abroad in Foreign Wars, or into Plantations of other countries': And it is to be observed, that wherever they have planted, they have increased and multiplied, as particularly in Ireland; but no part of the Benefit does accrue to their Native Country.  
The Nation has very long desired Foreign Settlements of their own, and did make some Attempts that way, which proved ineffectual for want of due Encouragement, but His Sacred Majesty, as Father of his Country, regarding the Welfare of it, did endue the same with suitable Encouragements by the 32d. Act, Par. 1693. and by the 8th. Act, Par. 1695. Yet both these Laws were granted with a due regard to all former Planters; And did only allow them to plant Colonies, build Cities, Towns, and Forts in Asia, Africa, and America, upon Places not inhabited, or in, or upon any other Place, by Consent of the Natives, or Inhabitants thereof, and not possessed by any European Sovereign, Potentate, Prince or State.  
By these Acts of Parliament, and Patent conform, His Majesty did sufficiently provide, that the Possession of no European Prince should be invaded or molested: And if Spain be injured, the Company must acknowledge, that the Injury flows from them, by exceeding the Limits of their Patent.  
It remains to be cleared in behalf of the Company, that they have strictly observed the Rules prescribed by the said Acts and Patent.  
The King of Spain's Title to America by the Pope's Bull, is rejected by the common Consent of all the Princes and States in Europe, who could not have settled there without Injury to Spain, if the Pope's Bull had been a sufficient Title; and neither Spain or Portugal hath relied upon that Title, the one having planted in the East-Indies, and the other in the West, without regard to it: And this Title is sufficiently discussed by Grotius in his Mare Liberum, Cap. 3. and will never be insisted on any where, and least of all in Britain.  
America being inhabited by Natives, before Spain or any European People settled there, it is most certain, that the Right and Property did originally belong to these Natives, because the Earth was created for, and freely given by the Creator to the Children of Men, and the most Ancient and Uncontraverted Right of Property of the Earth is by Occupation and Possession, which is an outward Act of the Body quasi positio pedis, and not an inward Act of the Mind, which cannot be known to others, beside many men's wills might concur in wishing and liking the same thing, but their Bodies cannot concur in possessing it, and an outward Act of Possession warns others to abstain.  
The Property that originally belonged to the Natives, could only be transferred from them to Spain by Conquest or Consent, and Spain can pretend neither of these Titles to the Isthmus where the Scots have settled.  
It is alleged for Spain, That they do possess the Isthmus of Darien, in as far as they are undoubted Masters of the Bay of Panama, and the whole Coast of the Isthmus upon the South Sea: They have likewise Carthagena and Portobella on the North Sea, and they are Masters of the whole Country betwixt Carthagena and portobelo, and so must be reckoned Possessors of all, because Possession doth not require the particular Occupation of every part of a Country, but Occupation of one part is a sufficient Act to demonstrate the Will and Intention to possess the whole Pertinents: And the Spaniards having possessed these two Extremes, the middle Space belongs to them, especially seeing they have also settled in other Places betwixt these two, as their Conveniency did require, tho' they did afterwards quite these Possessions, as particularly they once possessed Nombre de Diet, and did also plant within the River Datien, and tho' they did quite these Possessions, they did not relinquish or repudiate their Right, but being better informed, they choosed more convenient Seats, but still reckoned themselves Proprietors of the whole Isthmus, and divided the same in several Jurisdictions. And the Natives upon that Isthmus were a mean inconsiderable People not to be regarded, who could not be thought to retain any Right or Property in Opposition to the Power of Spain.  
They further add, That Spain hath been considered as undoubted Proprietors of the Bay of Mexico, and of that Isthmus, by other Nations in Christendom, and most particularly by the English, as is well known, and will clearly appear in two remarkable Instances.  
Several English Merchants having advanced their Stock, for settling a Plantation at Port-Royal in the Bottom of the Bay of Campechay, for cutting of Logwood, they desired the Countenance and Protection of the Government, for carrying on this profitable Trade: The Case was considered by the Council of England, and it was not found just, to allow the Protection of the Government, but were only left in a Permissive State, to manage their Trade upon their Peril.  
The Second Case, which comes closer to the present Question, was a Proposal by certain English Undertakers to settle in Darien, as the Scots have done, which being brought to the Council of Trade of England, and by them laid before the Lords Justices in His Majesty's Absence, and transmitted to the King himself, Upon a full Consideration of the Case, that Project was thought to be an Encroachment upon Spain, and let fall.  
The King himself, and Council of England, being satisfied of the Right of Spain, in these particular Cases of English Undertakers, the same judgement ought to follow, in relation to the Sco●● Company.  
To all that is alleged, it's shortly and clearly Answered, That Spain hath neither Right by Treaties nor Possession to the Country now possessed by the Scots: And, 1st. Tho' it be acknowledged, that the Spaniards have more Strength, and larger Possessions on the South, than upon the North Sea, yet no Possession there can be extended to the North-side of the Isthmus, being possessed by a People Independent, who never received the Spaniards, or became subject to them: The Spaniards indeed have made great Settlements upon the South Sea, and in so far as they have possessed, have restricted the Natives to narrower Bounds; but the Indians still continuing to possess what remains, Possession on the Coast, or the Mouths of Rivers on the South Sea, can never be extended to the North Coast: And the Spaniard can condescend upon no Ground in Law or Reason for such an Extension, hor can they make appear, that what the Scots possess is Part and Pertiennt of their Plantation, especially considering that the Isthmus of Darien is naturally divided by a Ridge of high Hills running from East to West.  
Neither doth the possession of Carthagena and Porto-bello, give Right to the interveening Country, which is above 80 Leagues or 240 English Miles, and these particular Forts, as well as the whole Spanish Plantations on the South Sea, being fixed without consent of the Natives, who continue their Possession in the interveening Country, without any Subjection to, or acknowledgement of the Spaniard: It lies upon the Spaniards to condescend by what Rule the Limits of these Possessions can be so far extended.  
As to what is alleged, That the Spaniards have other Plantations nearer to the Scots Settlement from which they removed, but still retain Possession and Jurisdiction.  
It is Answered, Admitting the matter of Fact as alleged, it comes to nothing; For still it is to be remembered, That the Spaniard will not pretend to have planted with the consent of the Natives: Nor, that the Darien Indians have ever acknowledged Subjection; but they planted by Force and Violence: And therefore, whatever Forts they made in the Isthmus of Darien, the moment that these Plantations were left, the Right and Possession of the Natives did return.  
It is freely acknowledged, That Possession lawfully obtained by an outward Act of the Body, is retained by Acts of the Mind, if no other possess; but when Possession is taken by way of Fact, and not actually detained, the Right and Possession returns to the lawful Proprietor.  
2. This alleged Possession of Nombre de Dios, and in the River of Darien, is only pretended to have been at their first Settlement in America, before they possessed Carthagena and Porto-bello.  
3. None of these pretended Settlements are within 20 Leagues of the Scots Colony; And though Spain had yet Plantations there, the Limits could as little be extended to 20 Leagues beyond the actual Possession as to a Thousand: Neither can the Spaniards prove any Act of Jurisdiction over the Darien Indians, whatever Title they may think fit to give to Governors or Viceroy's in America, the Scots do neither know, nor are obliged to notice the same: If Titles were enough, the King of Spain assumes a Glorious Title of Indiarum Rex, but he has no more Jurisdiction over the Darien Indians, than in the Plantations of any other European Prince.  
As to what is alleged upon the Opinions given by the King and Council of England, in relation to His Majesty's English Subjects projecting Settlements in America, The Circumstances of the Projects, and the Motives of any Resolution taken in them, are wholly unknown to the Scots, and nothing can be founded on such Matters of Fact, unless the whole Circumstances were Authentically instructed or acknowledged, but whatever was thought proper in these Cases, nothing can be inferred from thence to determine this.  
A Project is to be regulated either by Law or by Conveniency; And it's very ordinary and suitable, That his Majesty and the Government may discourage the Project of an Undertaking, if not Convenient, though lawful: But when a Project is Undertaken, Carried on, and a Settlement made in pursuance of express Acts of Parliament, and conform to a Patent, there's no more place to Deliberate what is fit, but what is Lawful.  
If the whole Circumstances were known, many Disparities might also appear, and from the bare relation of the Case of the intended Settlement in the Bay of Campeohay a manifest Disparity is evident.  
The Bay of Campechay is in the Province of Nicaragua, in the Diocese of Chiapo, which Province and Bishopric, are part of the Ancient Empire of Mexico, which was conquered by Spain.  
By the Conquest of Mexico, the King of Spain as Conqueror, had Right of Sovereignty as far as the Dominions of Mexico did extend, and the Right and Possession of the Conquered People may reasonably be reckoned to become the Possession of the Conqueror; And therefore a Settlement in Nicaragua or Bay of Campechay might be reckoned a down Right Encroachment upon Spain, which cannot be drawn in Consequence to a Settlement upon Darien, because the Spaniards can condescend upon no Title or Right beyond their actual Possession; for the darians were never subdued, nor did they ever depend upon Mexico or Peru, or any Prince or People subdued by the Spanirds.  
And further, whatever be urged from these Cases, yet it can be made appear, That the Undertaking to settle in Campechay was effectual, and the Cart is marked Port-Royal English-Colony; and 'tis known that the English cut Logwood at Cape-Catach in Jucatan till the Charge of Carriage rendered it unprofitable, and thereafter Settled at Port-Royal for the same Effect, where there is plenty of Logwood appropriated to the English.  
It is also acknowledged, That the Darien-Indians are no powerful People, or able by themselves to resist the Impressions of Spain, but the point of Right and Property is the same in Rich and Poor, Strong and Weak, and they might lawfully transfer their Right, and assume the Scots or any other Nation to support or maintain the Right and Possession of that Isthmus, in as far as it was free from the Spanish Dominions.  
Yet the darians were not wholly neglected by the Spaniards as inconsiderable, for there have been frequent and almost constant Wars between them and Spain, in which the several Captains and Carriques' have joined together, and there is a famous Case of Barth: Sharp, who being accused in England as guilty of Piracy and Robbery committed upon the Indians, he defended himself as acting by Commission from Independent Native Indians then at War with Spain, and was acquitted.  
The Right of the Scots Colony, as flowing from the Native Indians, is already sufficiently cleared, according to the most Ancient and Authentic Laws of Property, acknowledged by all Nations: And for a further Evidence and Demonstration of what has been asserted, and already sufficient-proven the Settlement of the English, French, Danes, Portuguese, and Dutch, will all be found to be Bottomed on the same Ground.  
The Spanish are the most Ancient Planters, and if Spain pretend to any Universal Title, either by Occupation of a part, or by the Pope's Gift, or any other Right, he thereby excludes the Claim of all Posterior Planters, either in the Continent, or American Islands, which could not be thought to be separate and indifferent Dominions: And if Spain recede from any Universal Title to the whole, it will not be possible to extend his Claim beyond his proper Possession, or the Possessions of these that are Subduced and Conquered by Spain: And if this be called in Question, it is expected, That some other Title will be condescended upon, that may clear the Limits and Extent of the Spanish Colonies, so as to make a Difference betwixt the Scots Settlement in Darien, and the Settlement of other Princes in the American Islands or Continent.  
The Empires of Mexico and Peru are known, and may be yielded to Spain, but the remainder of that vast Country was anciently possessed by little Princes, or rather Captains or Heads of Families or Cariques, who have no Dependence upon each other, nor upon any Prince or Potentate, but by Leagues and Agreement for mutual Defence. Thus it is known, That the Land of the Amazons was possessed by the Natives; And it is remarkable, That upon the Banks of Amazon, there are Fifty different Nations: So it is in Brasil, in Chili, Paragua, Florida, Carolina, Virginia, and generally over all the Continent, as well as in the Islands of America, and likewise in Asia and Africa: And therefore, European Princes have planted promiscuously, as they found Conveniency, without Injury or Encroachment upon former Planters.  
The English possess the Continent from New-England to Carolina, without the Interposition of Colonies belonging to any European Prince, yet the Dutch, in time of Peace, set down upon Long-Island, and the Country now called New-York, betwixt New-England and Pensilvania, and continued to possess till the end of the War 1667: At which time, New-York was exchanged for Suranam.  
The Spanish Plate-Fleet do necessarily pass betwixt Cape-Florida and the Bahaman-Islands, yet the English possess these Islands, which the Spaniards did mightily resent, and used the English very barbarously upon it, yet Spain not being able to justify any unlawful Title, the English did maintain their Possession.  
Whatever be alleged, That the Government did not interpose for establishing a Logwood-Trade, yet it's certain, that the English did appropriate the Logwood at Cape-Catch in Jucatan, till it was exhausted, and they afterwards settled at Port-Royal in the Bay of Campechay, for carrying on the same Trade, which was never questioned by the Spaniards.  
The French have several times endeavoured to settle in the River de Spiritu Sancto in the Bay of Mexico, and also the Samballo-Islands upon the Coast of Darien, and have actually settled a Colony in Petitguavis in Hispaniola, the rest of that Island being possessed by the Spaniards: The French have also a Settlement in Guiana in the Terra-Firma, and several Forts upon the Coast of Caribana, and above twelve or thirteen American Islands.  
The Dutch have also the City of Coro in the North of Terra-Firma, and Suranam, and certain Forts upon the Coast of Guiana and Curasao, and several American Islands.  
The Portuguese have the Coast of Brasil divided into many Captainships. The Interest of Spain was ever opposite to all these Settlements in America, and wherever they were strong enough, they attempted to expel the Planters, without regard to Peace or War, whereof the Scots did formerly feel the Effects, in their Plantation at Carolina holden of the Crown of England, from whence they were expelled: These things were done by way of Fact, but it is the first time that ever Spain did openly pretend a Right beyond actual Possession, which was never sustained by any European Prince. And it is desired and expected, that there may be a further Condescendance of the Right and Title of Spain, to exclude other Planters by the Consent of the Natives, where Spain hath no actual Possession, or Exercise of any Jurisdiction.  
It is further alleged for Spain, That all the Business in America was settled by the Pacification 1670, betwixt the Kings of Britain and Spain, which did confirm all the Plantations possessed by English Colonies, and left the Remainder of America to Spain, and whatever happened before that General Treaty, could be no Rule thereafter, because there was almost perpetual War with Spain in America, which were never settled or composed till the Treaty 1670, which did presuppose and establish the Right of Spain to all that was not possessed by the King of Brittain's Subjects.  
As to the Instance of Sharp, it is not denied that he was acquitted, and amongst others did propone that Defence, That he Acted by Commission from an Indian Prince; but that Defence was looked upon as a Jest, and it was not for that Reason that he was acquitted.  
It is Answered, There was indeed a Treaty in the Year 1670, concerning America in particular, whereby it was provided, That the King of Britain should have, hold and enjoy for ever, with full Right of Sovereignty, Dominion and Property, all those Lands, Regions, Islands, Colonies, and Places whatsoever situated in the West-Indies, or any part of America, which the said King and his Subjects did then hold and possess; From which Article the Spaniards would infer, that all the rest of America was lost by the King of Britain, as a Right and Dominion of Spain, because that Spain ratifies the Possession obtained by the King of Britain, and there is not a mutual Ratification of the Possession of the King of Spain.  
This Article can bear no such Inference, for,  
1. The King of Britain and his Subjects did not then, nor do they now in the least question the Possessions of the King of Spain and his Subjects, but the King of Spain did very much question the Right of the King of Britain to several of his American Plantations, not only upon the general Ground of an Universal Title to all the West-Indies, which not European Prince will bear, but likewise upon particular Claims, that the English had beat out the Spaniards, and enjoyed what had been once possessed by them in several places: And the former Treaties with Spain especially that in the Year 1667, were only general, establishing a perpetual Peace betwixt the Dominions and Territories of Britain and these of Spain: But the Question remaining anent the Right and Dominion of these American Settlements to which the King of Spain did lay still a Claim, The Treaty 1670, did renounce his Claim to the Colonies in the English Possession, but did determine nothing as to those parts of America, which were never Possessed by the Spaniard or British, and if it had been intended, that the Right of Spain to all America that was not possessed by some other European Prince should be asserted, and declared the same would not have been left to such remote conjectures, but would have been specially expressed.  
2. The whole Tenor of that Treaty does sufficiently clear, that no such thing was intended as to presuppose, much less to assert the Right of Spain beyond actual possession. For by the Second Article of the Treaty, it is provided, That there be an Universal Peace in America, as in other parts of the World between the Kings of Great Britain and Spain, and between the Kingdoms, States, Plantations, Colonies, Forts, Cities, Islands and Dominions belonging to either of them; and between the People and Inhabitants under their respective Obedience.  
This Article in the Treaty relating to America, only doth clearly demonstrate, that both Kings were set upon an equal foot, and did Treat for themselves and the People and Inhabitants under their respective Obedience, and no further; so that all matters were left untouched that did concern parts not Inhabited or possessed by Natives, who were never under obedience to either Prince, nor would the Treaty have been for Plantations, Colonies, Forts, etc. equally and mutually, if either King had pretended an universal Title or Right beyond Possession.  
3. The Eight Article doth yet further clear, that the King of Spain had no Universal Claim, but according to his Possession, which Article provides, that the Subjects, Inhabitants and Mariners of the Dominions of each Confederate, shall forbear to Sail to, or Trade in the Ports and Havens which are fortified with Castles, Magazines or Warehouses, and in all other. Places whatsoever, possessed by the other Party in the West Indies. To wit, the Subjects of Britain shall not Sail into, and Trade in the Havens and Places, which the Catholic King holds in the Indies, nor in like manner shall the Subjects of the King of Spain Sail into, etc.  
This Clause is, plainly restrictive upon the King of Spain, That the Subjects of the King of Britain shall not Trade into these places of the Indies which belong to Spain; for thereby it presupposes that Spain has no Universal Title, and it's left free to the King of Britain's Subjects to Sail into, and Trade in all Ports and Havens which have no Fortifications, Castles, Magazines, or Warehouses Possessed by the King of Spain, and consequently it was lawful to have Sailed to, and Traded with the Darien Indians where the King of Spain had no Fortifications, Castles, Magazines or Warehouses, nor can clear any manner of Possession, and if they might Trade with the Indians it must be acknowledged they might Settle among them.  
It's also provided by the Tenth Article, that in case the Ships of either Party be forced by stress of Wether, or otherwise into the Rivers, Creeks, Bays or Ports belonging to the other in America, they shall be treated there with all Humanity and Kindness; Which Article states both Kings again upon an equal foot, and mentions the Right of both as restrictive to particular Rivers, Creeks, Bays, etc. in America as if neither Party claimed Universal Title over all.  
The 15th. Article of the said Treaty provides, that the same shall in nothing derogate from any preeminency, Right or Dominion of any Confederate in the American Seas, Channels or Waters, but that they have and retain the same in as full and ample manner as may of right belong unto them, providing always that the Liberty of Navigation ought in no manner to be disturbed.  
This Article relates to certain Preeminencies and Privileges claimed by Spain in the American Sea, which by the Treaty was not yielded, but left in the same state as formerly; and if the King of Spain had pretended to an Universal Right over all America, in so far as is not possessed by other European Princes, why was he more careful to preserve his Claim of Sovereignty in the Seas, and forgot his Dominion upon the main Land? There can be no other reason for it, but because there was no such thing in prospect, as appears by the whole Tenor of the Treaty.  
Nothing hath been alleged in behalf of Spain to make any disparity betwixt all the Settlements that have been made in America by the Subjects of the King of Britain or other Princes, except the Treaty 1670: Which when duly considered, makes no disparity at all. For albeit the Possession of the King of Britain's Subjects be thereby confirmed; yet it will not be acknowledged by the King of Great Britain, or any other Prince that the Settlements made by their Subjects were illegal or violent, until confirmed by the King of Spain, and all Nations who have Planted there must sustain and justify the Scots Settlement, or acknowledge that the Settlement of their own Subjects were injurious to the Right of Spain.  
It is not, nor can be denied, that the darians have been at frequent War with Spain, altho' they pretend, that the darians were rather Rebels than Enemies. That is only for to beg the Question, for the Natives having the Ancient undoubted Right, it must be instructed, that they became Subjects before they could be Rebels.  
And tho' it be alleged, that what was done in Sharp's Case was reckoned a Jest, and that he was not acquitted upon that ground, as acting by Commission from the Dariens; yet the matter of Fact is certain and known, and was indeed remarked by all England, that Sharp joined with the Dariens, did commit acts of Hostility and carried away great booty from the Spaniards, and was pursued for Restitution in England, and did propone a Defence. That he acted by Commission from an Independent People, and was acquitted by a competent Judicature in England.  
These matters of Fact being all acknowledged, it must be thought that a Decision in the way of Justice was no Jest, but according to the Law of the Nation.  
To Conclude and Sum up the whole Matter, The Scots did not move one foot, until they obtained two Acts of Parliament, and a Patent in their favours. These Acts (tho' very ample) were framed with a just regard to former Planters, who by the express Tenor of the said Laws were not to be invaded or molested in their Possession; even the just Right and Property of the Infidel Natives was considered, and the Undertakers not allowed to dispossess them by Force and Violence, but to Plant with their consent: Upon the faith of these Laws, a greater Stock was advanced in Scotland than ever was raised by any other Nation, upon the first project of a Foreign Plantation; the Directors of the Company did very narrowly and exactly consider all the Treaties with Spain, and pitched upon a place, that the whole World considers to be of a great value for founding and raising a profitable Trade to the Honour of the King who (as the Father of the Country) did endue them with ample and just Privileges, to the increase of the Strength and Riches of the Isle of Britain, which is all under the Government of one Monarch, of one Religion and Interest, and can have no different Friends or Enemies without endangering the whole. In one word, The Scots Company have acted deliberately, for advantage to themselves, the Nation, and the Isle of Britain; they have only used their own Right and have wronged no Nation or People, nor exceeded the Limits of their Patent in any circumstance. And if any will stand up for the Interest of Spain, and call in question the matters of Fact and principles of Law above asserted, which are generally known and need not to be confirmed by particular Citations. they may assuredly expect that what has been affirmed shall be made further clear and evident beyond contradiction, and whatever Obstacles or Difficulties have, or may fall in, Ardua quae Pulchra, the undertaking was deliberate, just for the interest of the Nation, and with more regard to the Right of former Planters and Natives than any former Project of that Nature.  
FINIS.    

ADVERTISEMENT.  
WHoever would be furnished with any more Arguments for proving the legality of the Settlement of Caledonia, and with a full account of all the considerable occurrences relating thereunto may have his judgement sufficiently informed, and his Curiosity abundantly gratified by reading the following Books.  
1. A Defence of the Scots Settlement at Darien.  
2. A short and impartial view of the manner and occasion of the Scots Colony's coming away from Darien.  
3. An Enquiry into the Reasons of the Miscarriages of the Scots Colony at Darien, etc.  
4. A just and modest Vindication of ●he Scots Design for the having established a Colony at Darien.  
6. A full and exact Collection of all the considerable Addresses, Memorials, Petitions, Answers, Proclamations, Declarations, Letters and other Public Papers relating to the Company of Scotland Trading to Africa and the Indies, since the passing of the Act of Parliament, by which the said Company is established, together with the Act itself,