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come, members of the confederation,' &c., according to their usual respective proportions in the general charge and expenditure, and shall be faithfully and bona fide disposed of for that purpose, and for no other use or purpose whatsoever.' The ceded territory was occupied by numerous and warlike tribes of Indians; but the exclusive right of the United States to extinguish their title, and to grant the soil, has never, we believe, been doubted.
§ 34. “After these States became independent, a controversy subsisted between them and Spain respecting boundary. By the treaty of 1795, this controversy was adjusted, and Spain ceded to the United States the territory in question. This territory, though claimed by both nations, was chiefly in the actual occupation of Indiang.
“The magnificent purchase of Louisiana was the purchase from France of a country almost entirely occupied by numerous tribes of Indians, who are in fact independent. Yet, any attempt of others to intrude into that country would be considered as an aggression which would justify war.
§ 36. “Our late acquisitions from Spain are of the same character; and the negotiations which preceded those acquisitions recognize and elucidate the principle which has been received as the foundation of all European title in America.
§ 37. “The United States, then, havo unequivocally acccdcd to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, cither by purchase or by conquest; and gave also a right to such a degree of sovereignty as the circumstances of the people would allow them to exercise.
§ 38. “The power now possessed by the government of the United States to grant lands resided, while we were colonies, in the crown or its grantees. The validity of the titles given by either has never been questioned in our courts. It has been exercised uniformly over territory in possession of the Indians. The existence of this power must negative the existence of any right which may conflict with and control it. An absolute title to lands cannot exist, at the same time, in different persons, or
in different governments. An absolute must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognize the absolute title of the crown, subject only to the Indian right of occupancy, and recognize the absolute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians.”
ORIGIN AND SETTLEMENT OF VIRGINIA.
§ 39. Having thus traced out the origin of the title to the soil of America assorted by the European nations, wo may now enter upon a consideration of the manner in which the settlements were made, and of the political constitutions by which tho various colonies were organized and governed.
$ 40. For a long time after the discoveries of Cabot, were made, England from various causes remained in a state of indifference or inactivity in respect to the territory thus subjected to her sway.' Nearly a century elapsed before any effectual plan for planting any colony was put into operation; and indeed the ill success, not to say entire failure, of the first expedition was well calculated to abate any undue confidence in the value of such enterprises. In 1578, Sir Humphrey Gilbert, having obtained letters-patent from Queen Elizabeth,2 granting him and his heirs any lands discovered by him, attempted a settlement on the cold and barren shores of Capo Breton and the adjacent regions, and exhausted his fortune and lost his life in the fruitless labor. 8 The brilliant genius of Sir Walter Raleigh was captivated by the allurements of any scheme which gave play to his romantic temper; and unmindful of the disastrous fate of his halfbrother, or gathering fresh courage from the consciousness of difficulties, cagerly followed up the original plan under a new patent from the crown. To him we are indebted for the first plantations in the South ; 6 and such was the splendor of the description of the soil and climate and productions of that region given by the first adventurers, that Elizabeth was proud to bestow upon it the name of Virginia, and thus to connect it with the reign of a virgin Queen. But notwithstanding the bright
1 Robertson's America, B. 9; Doug. Summ. 110, &c.
prospects thus held out, three successive attempts under the auspices of Raleigh ended in a ruinous disaster, and seemed but a presage of the hard fate and darkened fortunes of that gallant but unfortunate gentleman."
§ 41. The first permanent settlement made in America under the auspices of England was under a charter granted to Sir Thomas Gates and his associates by James the First, in the fourth year after his accession to the throne of England ? (in 1606). That charter granted to them the territories in America, then commonly called Virginia, lying on the sea-coast between the 34th and the 45th degrees of north latitude and the islands adjacent within 100 miles, which were not belonging to or possessed by any Christian prince or people. The associates were divided into two companies, one of which was required to settle between the 34th and 41st degrees of north latitude, and the other between the 38th and 45th degrees of north latitude, but not within 100 miles of the prior colony. By degrees the name of Virginia was confined to the first or south colony.3 The second assumed the name of the Plymouth Company, from the residence of the original grantees; and New England was founded under their auspices. Each colony had exclusive propriety in all the territory within fifty miles from the first seat of their plantation. 6
§ 42. Some of the provisions of this charter deserve a particular consideration from the light they throw upon the political and civil condition of the persons who should become inhabitants of the colonies. The companies were authorized to engage as colonists any of the subjects of England who should be disposed to emigrate. All persons being English subjects and inhabiting in the colonies, and every one of their children born therein, were declared to have and possess all liberties, franchises, and immunities, within any other of the dominions of the crown, to all intents and purposes as if they had been abiding and born within the realm of England, or any other dominions of the crown. The patentees were to hold the lands, &c., in the colony, of the king, his heirs and successors, as of the manor of East Greenwich in the county of Kent, in free and common
i Robertson's America, B. 9.
6 1 Haz. Coll. 50.
socage only, and not in capite; and were authorized to grant the same to the inhabitants of the colonies, in such manner and form and for such estates as the council of the colony should direct. 1
§ 43. In respect to political government, each colony was to be governed by a local council, appointed and removable at the pleasure of the crown, according to the royal instructions and ordinances from time to time promulgated. These councils were to be under the superior management and direction of another council sitting in England. A power was given to expel all intruders, and to lay a limited duty upon all persons trafficking with the colony; and a prohibition was imposed upon all the colonists against trafficking with foreign countries under the pretence of trade from the mother country to the colonies.
§ 44. The royal authority soon found a gratifying employment in drawing up and establishing a code of fundamental regulations for these colonies, in pursuance of the power reserved in the charter. A superintending council was created in England. The legislative and executive powers were vested in the president and councils of the colonies; but their ordinances were not to touch life nor limb, and were in substance to conform to the laws of England, and were to continue in force only until made void by the crown, or the council in England. Persons committing high offences were to be sent to England for punishment; and subordinate offences were to be punished at the discretion of the president and council. Allegiance to the crown was strictly insisted on; and the Church of England established. The royal authority was in all respects made paramount; and the value of political liberty was totally overlooked, or deliberately disregarded.
§ 45. The charter of the first or Virginia colony was successively altered in 1609 and 16124 without any important change in its substantial provisions, as to the civil or political rights of the colonists. It is surprising, indeed, that charters securing such vast powers to the crown, and such entire dependence on the part of the emigrants, should have found any favor in the eyes either of the proprietors or of the people. By placing the whole legislative and executive powers in a council nominated by the
1 1 Haz. Coll. 50; Marsh. Colon. 25, 26; Robertson's America, B. 9.