exclusive possession and occupancy of the territory within their respective limits as sovereigns and absolute proprietors of the soil. They acknowledged no obedience or allegiance or subordination to any foreign sovereign whatsoever; and as far as they have possessed the means, they have ever since asserted this plenary right of dominion, and yielded it up only when lost by the superior force of conquest, or transferred by a voluntary cession.

§ 4. This is not the place to enter upon the discussion of the question of the actual merits of the titles claimed by the respective parties upon principles of natural law. That would involve the consideration of many nice and delicate topics, as to the nature and origin of property in the soil, and the extent to which civilized man may demand it from the savage for uses or cultivation different from, and perhaps more beneficial to, society than the uses to which the latter may choose to appropriate it. Such topics belong more properly to a treatise on natural law than to lectures professing to treat upon the law of a single nation.

§ 5. The European nations found little difficulty in reconciling themselves to the adoption of any principle which gave ample scope to their ambition, and employed little reasoning to support it. They were content to take counsel of their interests, their prejudices, and their passions, and felt no necessity of vindicating their conduct before cabinets, which were already eager to recognize its justice and its policy. The Indians were a savage race, sunk in the depths of ignorance and heathenism. If they might not be extirpated for their want of religion and just morals, they might be reclaimed from their crrors. They were bound to yield to the superior genius of Europe, and in exchanging their wild and debasing habits for civilization and Christianity they were deemed to gain more than an equivalent for every sacrifice and suffering. The Papal authority, too, was brought in aid of these great designs; and for the purpose of overthrowing heathenism, and propagating the Catholic religion,2 Alexan

1 8 Wheat. R. 543, 573; 1 Haz. Coll. 50, 51, 72, 82, 103, 105; Vattel, B. 1, ch. 18, §§ 207, 208, 209, and note.

2 "Ut fides Catholica, et Christiana Religio nostris præsertim temporibus exaltetur, &c., ac barbara nationes deprimantur, et ad fidem ipsam reducantur," is the language of the Bull. 1 Haz. Coll. 3.

der the Sixth, by a Bull issued in 1493, granted to the Crown of Castile the whole of the immense territory then discovered, or to be discovered, between the poles, so far as it was not then possessed by any Christian prince.1

§ 6. The principle, then, that discovery gave title to the government, by whose subjects or by whose authority it was made, against all other European governments, being once established, it followed almost as a matter of course, that every government within the limits of its discoveries excluded all other persons from any right to acquire the soil by any grant whatsoever from the natives. No nation would suffer either its own subjects or those of any other nation to set up or vindicate any such title.2 It was deemed a right exclusively belonging to the government in its sovereign capacity to extinguish the Indian title, and to perfect its own dominion over the soil, and dispose of it according to its own good pleasure.

§ 7. It may be asked, what was the effect of this principle of discovery in respect to the rights of the natives themselves. In the view of the Europeans it created a peculiar relation between themselves and the aboriginal inhabitants. The latter were admitted to possess a present right of occupancy or use in the soil, which was subordinate to the ultimate dominion of the discoverer. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion. In a certain sense they were permitted to exercise rights of sovereignty over it. They might sell or transfer it to the sovereign, who dis covered it; but they were denied the authority to dispose of it to any other persons; and until such a sale or transfer, they were generally permitted to occupy it as sovereigns de facto. But notwithstanding this occupancy. the European discoverers claimed and exercised the right to grant the soil, while yet in possession of the natives, subject however to their right of occupancy; and the title so granted was universally admitted to convey a sufficient title in the soil to the grantees in perfect dominion, or, as it is sometimes expressed in treatises of public law, it was a transfer of plenum et utile dominium.

§ 8. This subject was discussed at great length in the cele

1 Haz. Collect. 3; Marshall, Hist. Col. 13, 14.

2 Chalmers, Annals, 676, 677; 1 Doug. Summ. 213.

brated case of Johnson v. M'Intosh; and one cannot do better than transcribe from the pages of that report a summary of the historical confirmations adduced in support of these principles, which is more clear and exact than has ever been before in print.

§ 9. "The history of America," says Mr. Chief Justice Marshall, in delivering the opinion of the Court,1 (a) "from its discovery to the present day, proves, we think, the universal recognition of these principles.

"Spain did not rest her title solely on the grant of the Pope. Her discussions respecting boundary, with France, with Great Britain, and with the United States, all show that she placed it on the rights given by discovery. Portugal sustained her claim to the Brazils by the same title.

§ 10. "France, also, founded her title to the vast territories she claimed in America on discovery. However conciliatory her conduct to the natives may have been, she still asserted her right of dominion over a great extent of country not actually settled by Frenchmen, and her exclusive right to acquire and dispose of the soil, which remained in the occupation of Indians. Her monarch claimed all Canada and Acadic, as colonics of France, at a time when the French population was very inconsiderable, and the Indians occupied almost the whole country. He also claimed Louisiana, comprehending the immense territories watered by the Mississippi, and the rivers which empty into it, by the title of discovery. The letters-patent granted to the Sieur Demonts, in 1603, constitute him Lieutenant-General, and the representative of the king in Acadie, which is described as stretching from the 40th to the 46th degree of north latitude, with authority to extend the power of the French over that country and its inhabitants, to give laws to the people, to treat with the natives, and enforce the observance of treaties, and to parcel out and give title to lands, according to his own judgment.

18 Wheat. 543. See also Worcester v. Georgia, 6 Peters's R. 515; 4 Jefferson's Corresp. 478; Mackintosh's History of Ethical Philosophy (Phila. 1832), 50; Johnson v. M'Intosh, 8 Wheat. R. 574-588.

(a) See Wheat Int. Law, pt. 2, ch. 4, § 5; Jackson v. Wood, 7 Johns. 290; Clark v. Williams, 19 Pick. 499; Godfrey v. Beardsley, 2 McLean, 412; Coleman v.

Doe, 4 S. & M. 40; Jones v. Evans, 5 Yerg. 323; Rowland v. Ladiga, 9 Port. 488; Sparkman v. Porter, 1 Paine, 457.

§ 11. "The states of Holland also made acquisitions in America, and sustained their right on the common principle adopted by all Europe. They allege, as we are told by Smith, in his History of New York, that Henry Hudson, who sailed, as they say, under the orders of their East India Company, discovered the country from the Delaware to the Hudson, up which he sailed to the 43d degree of north latitude; and this country they claimed under the title acquired by this voyage. Their first object was commercial, as appears by a grant made to a company of merchants in 1614; but in 1621, the States-General made, as we are told by Mr. Smith, a grant of the country to the West India Company, by the name of New Netherlands. The claim of the Dutch was always contested by the English; not because they questioned the title given by discovery but because they insisted on being themselves the rightful claimants under that title. Their pretensions were finally decided by the sword.

§ 12. "No one of the powers of Europe gave its full assent to this principle more unequivocally than England. The documents upon this subject are ample and complete. So early as the year 1496, her monarch granted a commission to the Cabots, to discover countries then unknown to Christian people, and to take possession of them in the name of the King of England. Two years afterwards, Cabot proceeded on this voyage, and discovered the continent of North America, along which he sailed as far south as Virginia. To this discovery the English trace their title. In this first effort made by the English government to acquire territory on this continent, we perceive a complete recognition of the principle which has been mentioned. The right of discovery given by this commission is confined to countries 'then unknown to Christian people;' and of these countries Cabot was empowered to take possession in the name of the King of England. Thus asserting a right to take possession, notwithstanding the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people, who may have made a previous discovery.

§ 13. "The same principle continued to be recognized. The charter granted to Sir Humphrey Gilbert, in 1578, authorizes him to discover and take possession of such remote, heathen, and barbarous lands, as were not actually possessed by any Chris

tian prince or people. This charter was afterwards renewed to Sir Walter Raleigh, in nearly the same terms.

§ 14. "By the charter of 1606, under which the first permanent English settlement on this continent was made, James the First granted to Sir Thomas Gates and others those territories in America lying on the sea-coast between the 34th and 45th degree of north latitude, and which either belonged to that monarch, or were not then possessed by any other Christian prince or people. The grantees were divided into two companies at their own request. The first, or southern colony was directed to settle between the 34th and 41st degrees of north latitude; and the second, or northern colony, between the 38th and 45th degrees.

§ 15. "In 1609, after some expensive and not very successful attempts at settlement had been made, a new and more enlarged charter was given by the crown to the first colony, in which the king granted to the 'Treasurer and Company of Adventurers of the city of London for the first colony in Virginia,' in absolute property, the lands extending along the sea-coast four hundred miles, and into the land throughout from sea to sea. This charter, which is a part of the special verdict in this cause, was annulled so far as respected the rights of the company, by the judgment of the Court of King's Bench on a writ of quo warranto; but the whole effect allowed to this judgment was, to revest in the crown the powers of government, and the title to the lands within its limits.

§ 16. "At the association of those who held under the grant to the second or northern colony, a new and more enlarged charter was granted to the Duke of Lenox and others, in 1620, who were denominated the Plymouth Company, conveying to them in absolute property all the lands between the 40th and 48th degrees of north latitude. Under this patent, New England has been in a great measure settled. The company conveyed to Henry Rosewell and others, in 1627, that territory which is now Massachusetts; and in 1628, a charter of incorporation, comprehending the powers of government, was granted to the purchasers. A great part of New England was granted by this company, which, at length, divided their remaining lands among themselves; and, in 1635, surrendered their charter to the crown. A patent was granted to Gorges for Maine, which was allotted to him in