HISTORY OF THE COLONIES.
ORIGIN OF THE TITLE TO TERRITORY OF THE COLONIES.
§ 1. THE discovery
of the Continent of America by Columbus in the fifteenth century awakened the
attention of all the maritime States of Europe. Stimulated by the love of glory,
and still more by the hope of gain and dominion, many of them early embarked in
adventurous enterprises, the object of which was to found colonies, or to search
for the precious metals, or to exchange the products and manufactures of the old
world for whatever was most valuable and attractive in the new. 1
England was not behind her continental neighbours in seeking her own
aggrandizement, and nourishing her then infant commerce. 2
The ambition of Henry the Seventh was roused by the communications of Columbus,
and in 1495 he granted a commission to John Cabot, an enterprising Venetian,
then settled in England, to proceed on a voyage of discovery, and to subdue and
take possession of any lands unoccupied by any Christian Power, in the name and
for the benefit of the British Crown. 3
In the succeeding year Cabot sailed on his voyage, and having first discovered
the Islands of Newfoundland and St. Johns, he afterwards sailed along the coast
of the continent from the 56th to the 38th degree of north latitude; and claimed
for his sovereign the vast region, which stretches from the Gulf of Mexico to
the most northern regions. 4
§ 2. Such is the origin of the British
title to the territory composing these United States. That title was founded on
the right of discovery, a right, which was held among the European nations a
just and sufficient foundation, on which to rest their respective claims to the
American continent. Whatever controversies existed among them (and they were
numerous) respecting the extent of their own acquisitions abroad, they appealed
to this as the ultimate fact, by which their various and conflicting claims were
to be adjusted. It may not be easy upon general reasoning to establish the
doctrine, that priority of discovery confers any exclusive right to territory.
It was probably adopted by the European nations as a convenient and flexible
rule, by which to regulate their respective claims. For it was obvious, that in
the mutual contests for dominion in newly discovered lands, there would soon
arise violent and sanguinary struggles for exclusive possession, unless some
common principle should be recognized by all maritime nations for the benefit of
all. None more readily suggested itself than the one now under consideration;
and as it was a principle of peace and repose, of perfect equality or benefit in
proportion to the actual or supposed expenditures and hazards attendant upon
such enterprises, it received a universal Acquiescence, if not a ready
approbation. It became the basis of European polity, and regulated the exercise
of the rights of sovereignty and settlement in all the cis-Atlantic Plantations.
5 In respect to desert and uninhabited
lands, there does not seem any important objection, which can be urged against
it. But in respect to countries, then inhabited by the natives, it is not easy
to perceive, how, in point of justice, or humanity, or general conformity to the
law of nature, it can be successfully vindicated. As a conventional rule it
might properly govern all the nations, which recognized its obligation; but it
could have no authority over the aborigines of America, whether gathered into
civilized communities, or scattered in hunting tribes over the wilderness. Their
right, whatever it was, of occupation or use, stood upon original principles
deducible from the law of nature, and could not be justly narrowed or
extinguished without their own free consent.
§ 3. There is no doubt, that the Indian
tribes, inhabiting this continent at the time of its discovery, maintained a
claim to the 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 recognise 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 errors. 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. 6 The
Papal authority, too, was brought in aid of these great designs; and for the
purpose of overthrowing heathenism, and propagating the Catholic religion,
7 Alexander 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. 8
§ 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.
9 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 discovered 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 celebrated case of
Johnson v. McIntosh, (8 Wheat. 543); 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,)
10 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
Acadie, as colonies 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
§ 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
§ 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 all 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 Christian 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 seacoast between the 34th and 45th degrees 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 the division of property. All the grants
made by the Plymouth Company, so far as we can learn, have been respected.
§ 17. "In pursuance of the same
principle, the king, in 1664, granted to the Duke of York the country of
New-England as far south as the Delaware bay. His royal highness transferred
New-Jersey to Lord Berkeley and Sir George Carteret.
§ 18. "In 1663, the crown granted to
Lord Clarendon and others, the country lying between the 36th degree of north
latitude and the river St. Mathes; and, in 1666, the proprietors obtained from
the crown a new charter, granting to them that province in the king's dominions
in North America, which lies from 36 degrees 30 minutes north latitude to the
29th degree, and from the Atlantic ocean to the South sea.
§ 19. "Thus has our whole country been
granted by the crown while in the occupation of the Indians. These grants
purport to convey the soil, as well as the right of dominion to the grantees. In
those governments, which were denominated royal, were the right to the soil was
not vested in individuals, but remained in the crown, or was vested in the
colonial government, the king claimed and exercised the right of granting,
lands, and of dismembering the government at his will. The grants made out of
the two original colonies, after the resumption of their charters by the crown,
are examples of this. The governments of New-England, New-York, New-Jersey,
Pennsylvania, Maryland, and a part of Carolina, were thus created. In all of
them, the soil, at the time the grants were made, was occupied by the Indians.
Yet almost every title within those governments is dependent on these grants. In
some instances, the soil was conveyed by the crown unaccompanied by the powers
of government, as in the case of the northern neck of Virginia. It has never
been objected to this, or to any other similar grant, that the title as well as
possession was in the Indians when it was made, and that it passed nothing on
§ 20. "These various patents cannot be
considered as nullities; nor can they be limited to a mere grant of the powers
of government. A charter, intended to convey political power only, would never
contain words expressly granting, the land, the soil, and the waters. Some of
them purport to convey the soil alone; and in those cases, in which the powers
of government, as well as the soil, are conveyed to individuals, the crown has
always acknowledged itself to be bound by the grant. Though the power to
dismember regal governments was asserted and exercised, the power to dismember
proprietary governments was not claimed. And, in some instances, even after the
powers of government were revested in the crown, the title of the proprietors to
the soil was respected.
§ 21. "Charles the Second was
extremely anxious to acquire the property of Maine, but the grantees sold it to
Massachusetts, and he did not venture to contest the right of the colony to the
soil. The Carolinas were originally proprietary governments; In 1721 a
revolution was effected by the people, who shook off their obedience to the
proprietors, and declared their dependence immediately on the crown. The king,
however, purchased the title of those, who were disposed to sell. One of them,
Lord Carteret, surrendered his interest in the government, but retained his
title to the soil. That title was respected till the revolution, when it was
forfeited by the laws of war.
§ 22. "Further proofs of the extent,
to which this principle has been recognized, will be found in the history of the
wars, negotiations, and treaties, which the different nations, claiming
territory in America, have carried on, and held with each other. The contests
between the cabinets of Versailles and Madrid, respecting the territory on the
northern coast of the gulf of Mexico, were fierce and bloody; and continued,
until the establishment of a Bourbon on the throne of Spain, produced such
amicable dispositions in the two crowns, as to suspend or terminate them.
Between France and Great Britain, whose discoveries, as well as settlements,
were nearly contemporaneous, contests for the country, actually covered by the
Indians, began as soon as their settlements approached each other, and were
continued until finally settled in the year 1763, by the treaty of Paris.
§ 23. " Each nation had granted and
partially settled the country, denominated by the French, Acadie, and by the
English, Nova Scotia. By the 12th article of the treaty of Utrecht, made in
1713, his most Christian Majesty ceded to the Queen of Great Britain, 'all Nova
Scotia or Acadie, with its ancient boundaries.' A great part of the ceded
territory was in the possession of the Indians, and the extent of the cession
could not be adjusted by the commissioners, to whom it was to be referred. The
treaty of Aix la Chapelle, which was made on the principle of the status
ante bellum, did not remove this subject of controversy. Commissioners for
its adjustment were appointed, whose very able and elaborate, though
unsuccessful arguments, in favour of the title of their respective sovereigns,
show how entirely each relied on the title given by discovery to lands
remaining, in the possession of Indians.
§ 24. "After the termination of this
fruitless discussion, the subject was transferred to Europe, and taken up by the
cabinets of Versailles and London. This controversy embraced not only the
boundaries of New-England, Nova Scotia, and that part of Canada, which adjoined
those colonies, but embraced our whole western country also. France contended
not only, that the St. Lawrence was to be considered as the center of Canada,
but that the Ohio was within that colony. She founded this claim on discovery,
and on having used that river for the transportation of troops in a war with
some southern Indians. This river was comprehended in the chartered limits of
Virginia; but, though the right of England to a reasonable extent of country, in
virtue of her discovery of the seacoast, and of the settlements she made on it,
was not to be questioned; her claim of all the lands to the Pacific ocean,
because she had discovered the country washed by the Atlantic, might, without
derogating from the principle, recognized by all, be deemed extravagant. It
interfered, too, with the claims of France, founded on the same principle. She
therefore sought to strengthen her original title to the lands in controversy,
by insisting, that it had been acknowledged by France in the 15th article of the
treaty of Utrecht. The dispute respecting the construction of that article has
no tendency to impair the principle, that discovery gave a title to lands still
remaining in the possession of the Indians. Whichever title prevailed, it was
still a title to lands occupied by the Indians, whose right of occupancy neither
controverted, and neither had then extinguished.
§ 25. "These conflicting claims
produced a long and bloody war, which was terminated by the conquest of the
whole country east of the Mississippi. In the treaty of 1763, France ceded and
guarantied to Great Britain all Nova Scotia, or Acadie, and Canada, with their
dependencies; and it was agreed, that the boundaries between the territories of
the two nations in America should be irrecoverably fixed by a line drawn from
the source of the Mississippi, through the middle of that river and the lakes
Maurepas and Ponchartrain, to the sea. This treaty expressly cedes, and has
always been understood to cede, the whole country on the English side of the
dividing, line between the two nations, although a great and valuable part of it
was occupied by the Indians. Great Britain, on her part, surrendered to France
all her pretensions to the country west of the Mississippi. It has never been
supposed, that she surrendered nothing, although she was not in actual
possession of a foot of land. She surrendered all right to acquire the country;
and any after attempt to purchase it from the Indians would have been considered
and treated as an invasion of the territories of France.
§ 26. "By the 20th article of the same
treaty, Spain ceded Florida, with its dependencies, and all the country she
claimed east or southeast of the Mississippi, to Great Britain. Great part of
this territory also was in possession of the Indians.
§ 27. "By a secret treaty, which was
executed about the same time, France ceded Louisiana to Spain; and Spain has
since retroceded the same country to France. At the time both of its cession and
retrocession, it was occupied, chiefly, by the Indians.
§ 28. "Thus, all the nations of
Europe, who have acquired territory on this continent, have asserted in
themselves, and have recognized in others, the exclusive right of the discoverer
to appropriate the lands occupied by the Indians. Have the American States
rejected or adopted this principle?
§ 29. "By the treaty, which concluded
the war of our revolution, Great Britain relinquished all claim, not only to the
government, but to the ' propriety and territorial rights of the United States,'
whose boundaries were fixed in the second article. By this treaty, the powers of
government, and the right to soil, which had previously been in Great Britain,
passed definitively to these States. We had before taken possession of them, by
declaring, independence; but neither the declaration of independence, nor the
treaty confirming it, could give us more than that, which we before possessed,
or to which Great Britain was before entitled. It has never been doubted, that
either the United States, or the several States, had a clear title to all the
lands within the boundary lines described in the treaty, subject only to the
Indian right of occupancy, and that the exclusive power to extinguish that right
was vested in that government, which might constitutionally exercise it.
§ 30. "Virginia, particularly, within
whose chartered limits the land in controversy lay, passed an act, in the year
1779, declaring her 'exclusive right of pre-emption from the Indians of all the
lands within the limits of her own chartered territory, and that no persons
whatsoever have, or ever had, a right to purchase any lands within the same from
any Indian nation, except only persons duly authorized to make such purchase,
formerly for the use and benefit of the colony, and lately for the
Commonwealth.' The act then proceeds to annul all deeds made by Indians to
individuals for the private use of the purchasers.
§ 31. "Without ascribing to this act
the power of annulling vested rights, or admitting it to countervail the
testimony furnished by the marginal note opposite to the title of the law
forbidding purchases from the Indians, in the revisals of the Virginia statutes,
stating that law to be repealed, it may safely be considered as an unequivocal
affirmance, on the part of Virginia, of the broad principle, which had always
been maintained, that the exclusive right to purchase from the Indians resided
in the government.
§ 32. "In pursuance of the same idea,
Virginia proceeded, at the same session, to open her land-office for the sale of
that country, which now constitutes Kentucky, a country, every acre of which was
then claimed and possessed by Indians, who maintained their title with as much
persevering courage, as was ever manifested by any people.
§ 33. "The States having within their
chartered limits different portions of territory covered by Indians, ceded that
territory, generally, to the United States, on conditions expressed in their
deeds of cession, which demonstrate the opinion, that they ceded the soil as
well as jurisdiction, and that in doing so, they granted a productive fund to
the government of the Union. The lands in controversy lay within the chartered
limits of Virginia, and were ceded with the whole country northwest of the river
Ohio. This grant contained reservations and stipulations, which could only be
made by the owners of the soil; and concluded with a stipulation, that ' all the
lands in the ceded territory, not reserved, should be considered as a common
fund, for the use and benefit of such of the United States as have become, or
shall become, 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
§ 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 Indians.
§ 35. "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 or 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, have
unequivocally acceded 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, either 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
§ 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."
1. Marshall's Amer. Colonies, 12, 13; 1
Haz. Collec. 51, 72, 82, 103, 105; Robertson's Hist. of America, B. 9.
2. Robertson's America, B. 9.
3. 1 Haz. Coll. 9; Robertson's Hist. of
America, B. 9.
4. Marshall, Am. Colon 12, 13;
Robertson's America, B. 9.
5. Johnson v. McIntosh, 8 Wheat.
R. 543, 572, 573; 1 Doug. Summ. 110.
6. 8 Wheat. R. 543, 573; 1 Haz. Coll.
50, 51, 72, 82, 103, 105; Vattel, B. I, ch. 18, § 207, 208, 209, and note.
7. "Ut fides Catholica, et
Christiana Religio nostris praesertim temporibus exaltetur, &c., ac barbarae
nationes deprimantur, et ad fidem ipsam reducantur," is the language of the
Bull. 1 Haz. Coll. 3.
8. 1 Haz. Collect.; 3 Marshall, Hist.
Col. 13, 14.
9. Chalmers, Annals, 676, 677; 1 Doug.
Summ. 213; Chalmers, Annals, 677.
10. 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. McIntosh, 8 Wheat. R. 574-588.
Next | Contents |
Text Version |