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cessary for their particular subsistence. I have no doubt but that a nation greatly populous, whose numbers overcharge the soil, have a right to demand territory from a nation in possession of a soil equally fertile, and less abounding with inhabitants.
From the position which we have established, that it is the occupancy of a portion of the soil necessary for subsistence, that alone gives a right to hold it, it will follow that the circumstance of liaving first visited a country cannot give a right to any greater portion of the territory than is necessary for subsistence; and not indeed to any portion of it, unless the visitant remains to occupy and dwell upon it. Perhaps it may confera priority of right to occupy the soil while it shall be unoccupied by any other visitant.
We shall be sensible of this if adverting to the early emigrations, we consider that it would be absurd in Japheth the eldest son of Noah, wandering westwards from the mountains of Armenia, where the ark rested, to have advanced a claim to two or three countries, because in his way of life by pasturage or hunting, he had first passed the mountains, or first visited their boundaries.
The right of discovery was unknown in term or idea to the early ages, and it came first into view on the modern improvements in the art of navigation, when several of the sovereigns and states of Europe fitted out vessels to explore the seas, and to make discoveries. The expence and labour of the enterprize, would seem to give a right to the soil of that continent or island which they had discovered. Bat it may be said that an exclusive right of this kind would be unfavourable to the settlement of that country, and therefore could have no place even amongst the sovereigns and states of Europe, who by tacit and implied consent had submitted to it. Much less could it have a place amongst the claims of other nations of the world, who in no way, by direct assent or implication, had come to such agreement. In the mean time it will appear from history, that the claim of right, founded on the first discovery of the coast, was usurped by several of the sovereigns and states of Europe, rather
than acknowledged by the others, who had not been equally adventurous or succcessful in expeditions of this nature. The Swedes and Dutch seem to have paid no regard to the claim of Britain, founded on the first discovery of Sebastian Cabot, who coasted North-America ; for maugre his claim, the Dutch took possession of the country of New York, and the Swedes of Pennsylvania. No-state or individual ought to have regarded it; for no expence, enterprize, or labour of a nation, or of any individual, can give a right which in its operation would defeat the end in view by the Creator, sýhich was, that the earth be fully stocked with inhabitants. To this great end, every claim and institution of a partial nature ought to be subordinate. The claim therefore of the first adventurers could with justice only be to so much of the soil, as they themselves immediately should occupy,' and plant, and settle with inhabitants. These things may be said plausibly ; but it is to be considered that from the heart of Asia where man was first planted, it was an easy thing to emigrate and discover new countries. Hence it is that a pretence of right, from the first discovery of a country, would, in these early ages, have been vain, and we hear nothing of it. But when the whole eastern continent, and the islands of the coast had been visited and planted, it became an object of the industry of man, and required much sagacity, fortitude, and perseverance to explore the ocean, and effect discoveries. It was at the same time an affair of no small expence to fit out vessels for the voyage.
For these reasons natural justice would seem to give to the adventurers not only a priority of right to occupy a newly discovered country, but also a right to demand from others soine consideration in services or money for admission to it.
The only reason to be urged against the claim from discovery is, that it is not favourable to the population of the earth that individuals, on any pretence, whatsoever, should hold a greater portion of the soil, than is necessary for their particular subsistence. But it is to be considered, that it is favourable to population, because it is unfavourable to the
discovery of unknown regions of the earth, that the individual who by much labour and expence hath effected the discovery, shall nevertheless enjoy no advantage resulting from his ingenuity and enterprize, but a priority or right to occupy an equal portion of the soil with him who, led by the information of the first navigator, shall come to settle on it. The best argument in favour of the right of a first discoverer, will therefore be, that by giving due encouragement to men who shall search the globe by sea and land, and discover new soil, the whole earth will become peopled, and it seems to be the will of the Creator, that the whole earth be stoeked with inhabitants.
« Tenant, in dower is where the husband of a woman is seized 6 of an estate of inheritance and dies; in this case the wife shall “ have the third part of all the lands and tenements whereof he < was seized at any time during the coverture, to hold to herself “ for the term of her natural life.” 2 Bl. Com. 129.
With respect to dower, the act of Pennsylvrnia, of 1794, adopts the quantum allowed by the common law where there is a widow and lawful issue, viz. one third of the real estate for and during her natural life ; but in the case where there is a widow and no lawful issue there is a different provision. Sec. 4. “ If the intestate shall leave a widow, and no lawful issue, the said widow shall have one moiety or half part of the real estate, including the mansion house, during her natural life, except in cases, where, in the judgment of the Orphan's court the estate cannot with propriety be divided; and in that case she shall have and receive the rents and pro. fits of one moiety of the real estate during her natural life.”
And concerning “ the manner in which a woman is to be endowed,” by the same act, Sec. 22, it is provided, that upon petition presented to the justices of the Orphan's court of the county in which the lands lie, by the widow or by any of the
children of the intestate, or guardian, or next friends, if under age, the justices are empowered to appoint seven or more persons, indifferently chosen, on behalf and with consent of the parties, or where the parties cannot agree, to award an inquest to make partition; according to the purport and true meaning of the act.
These persons having made the inquisition are to make a return of it to the justices who are impowered then to give judgment, that the partition thereby made do remain : firm and stable for ever.
But, where the estate, &c. cannot be divided without prejudice or spoiling the whole, the said seven or more persons, or the said inquest as the case may be, shall make a just appraisement thereof to the Orphans Court. After this, but not otherwise, the court may order the whole to the eldest son, or any of the other sons successively if they neglect or refuse; if no son, or all neglect or refuse, to the eldest daughter, &c. in the same manner, he, she or they, or some friend legally authorised, paying to the other children their equal and proportionable part of the true value of the estate, according to the appraisement.
But where the widow is living, and the whole premises are so adjudged, she shall not be entitled to the sum at which her share is valued, but the sum and the interest shall remain charged upon the premises, the child to whom the estate has been so adjudged to pay the interest annually to the mother during her natural life, in lieu and in full satisfaction for her dower at common law.
The law of Pennsylvania is different from that of England, as to the way in which a femme covert may be barred of her dower, by levying a fine, or suffering a recovery of the lands during her coverture ; but which with us depends upon an act of assembly of 24 Feb. 1770, which is by appearing “before one of the judges of the supreme court, or before any justice of the county court of common pleas, of and for the county where the estate conveyed lies, and to acknowledge the conveyance, the wife being examined separate and
apart from her husband," &c. Whether this respects the lands of the femme in her own right before marriage ;zor her right of dower acquired in the husband's estate by her marriage had been distinguished; but it has been determin ed by the supreme court with a reference to both. For this see 1 Bin. 470.
“ How dower may be barred or prevented.” II Bl. Com 135.
THE question of a devise given in lieu of dower and the enjoyment of the devise, and which might be construed an acceptance barring dower was considered by the court in the case of Webb and wife, v. Evans, reported 1 Bin. 565, in which I am represented as concurring. I concurred in holding it under advisement, but not in giving judgment; but dissented in my mind from the opinion of Yeates and Smith justices, and during the vacation had drawn up my reasons; to be delivered at the subsequent term ; but judgment in the mean time being entered on the opinion of these judges; or in some way it happened that I had not an opportunity. It was not material, as my dissent would not have altered the decision of the court. Nor did I dissent so much from the law generally as laid down, but in the application of it to the particular case.
But what I take to be a very material alteration of the common law by our act of assembly of the 4th April, 1797, was not noticed in the opinion as reported of the court; and for that reason I subjoin my note. It is the common law " that where a devise is expressed to be given in lieu and satisfaction of dower; or where that is the clear and manifest intention of the testator, the wife shall not have both, but shall have her choice.” Harg. Co. Litt. 366. By our act it shall be taken to be in lieu of dower unless ex. pressed to the contrary. My note on the case, as drawn up was as follows.