JOHNSON GRAHAM'S Lessee WILLIAM M'INTOSH. · and Company of Adventurers and Planters of the City of...

OF THE UNITED STATES.

1823.

John3onV,

[Co0XSTITUTIONAL LAw.] MlInt*sb.

JOHNSON and GRAHAM'S LesseeV.

WILLIAM M'INTOSH.

A title to lands, under grants to private individuals, made by In-dian tribes o naticns northwest of the river Ohio, in 1773, and1775, cannot be recognised in the Courts of the United States.

ERROR to the District Court of Illinois. Thiswas an action of ejectment for lands in the Stateand District of Illinois, claimed by the plaintiffsunder a purchase and conveyance from the Pian-keshaw Indians, and by the defendant, under agrant from the United States. It ;:ame up on acase stated, upon which there was a judgmentbelow for the defendant. The case stated set outthe following facts :

1st. That on the 23d of May, 1609,' James I.kilag of England, by his letters patent of thatdate, under the great seal of England, did erect,form, and establish Robert, Earl of Salisbury, andothers, his associates, in the letters patent named,and their successors, into a body corporate andpolitic, by the name and style of" The Treasurerand Company of Adventurers and Planters of theCity of London, for the first Colony in Virginia,"with perpetual successionj and power to make,have, and use a common seal; and did give, grant,and confirm unto this company, and their succes-

543

CASES Lh THE SUPREME COURT

1823. sors, under certain reservations and limitations in"-4"- the letters patent expressed, " All the lands,Johnson

SV. countries, and territories, situate, lying, and beingrto~h. in that part of North America called Virginia,

from the point of land called Cape or Point Com-fort, all along the seacoast to the northward twohundred miles; and .from the said Cape or PointComfort, all along the seacoast to the southward,two hundred miles; and all that space and circuitof land lying from the seacoast of tme precinctaforesaid, up into the land throughout from thesea, west and northwest; and also all the islandslying within one hundred miles, along the coast-of both seas of the precinct aforesaid; with all thesoil, grounds, rights, privileges, and appurte-nances to these territories belonging, and in theletters patent particularly enumerated :" and didgrant to- this corporation, and their successors.various powers of government, in the letters pa-tent particularly expressed.

.2d. That the place, called in these letters patent,Cape or Point Comfort, is the place now calledand known by the name of Old Point Comfort,on the Chesapeake Bay and Hampton Roads; andthat immediately after the granting of the letterspatent, the corporation proceeded, under and byvirtue of them, to.take possession of parts of theterritory which they describe, and to form settle-ments, plant a colony, and exercise the powers ofgovernment therein; which colony was called andknown by the name of the colony of Virginia.

3d. That at the time of granting these letterspatent, and of the discovery of the continent of

OF THE UNITED STATE'S.

North America by the Europeans, and during the 1823.whole intermediate time, the whole of the terri-tory, in the letters patent described, except a small V.district on James River, where a settlement of .

Europeans -had previously been mtde, was held,occupied, and possessed, in full sovereignty, byvarious independent tribes or nations of Indians,who were the sovereigns of their respective por-Lions of the territory, and the absolute owners andproprietors of the soil; and who neither acknow-ledged nor owed any allegiance or obedience toany European .sovereign or state whatever: andthat in making settlements within this territory,and in all the other parts of North America, wheresettlements were made, under the authority ofthe English government, or by its subjects, the-right of soil was previously obtained by purchaseDr conquest, from the particular Indian tribeornation by which the soil was claimed and held; orthe consent of such tribe or nation was secured.

4th. That in the year 1624, this corporationwas dissolved by" due course of law, and all itspowers, together with its riglts of soil and juris-diction, under the letters patent in question, wererevested in the crown of England; whereuponthe colony became a royal government, with thesame territorial limits and extent which had beenestablished by the letters patent, and so continueduntil it became a free and independent State;except so far as its limits and extent were alteredand curtailed by the treaty of February 10tb, 1763,be.tween Great Britain and France, and by theletters patent granted by the King of England,

IVOL. VIII. 69

545

CASES IN THE SUPREME COURT

1823. for. establishing the colonies of Carolina, Mary-%Pvf' land, and Pennsylvania.

5th. That some time previous to the year 1756,o. the French government, laying a claim to the

country west of the. Alleghany or Appalachianmountains, on the Ohio and Mississippi rivers,and their branches, took possession of certainparts of it, with the consent of the several tribesof nations of Indians possessing and owning them;and, with the like consent, established several mi-litary posts and settlements therein, particularlyat Kaskaskias, on the river Kaskaskias, and atVincennes, on the river Wabash, within the limitsof the colony of Virginia, as described and estab-lished in and by the letters patent of May 23d,1609: and that the government of Great Britain,after complaining of these establishments as en-croachments, and remonstrating against them, atlength, in the year 1756, took up arms to resistand repel them; which produced a war betweenthose two nations, wherein the Indian tribesin-habiting and holding. the countries northwest ofthe Ohio, and on the Mississippi above the mouthof the Ohio, were the allies of France, and theIndians known by the name of the Six Nations, orthe Iroquois, and their tributaries and allies, werethe allies of Great Britain; and that on the 10thof February, 1763, this war was terminated by adefinitive treaty of peace between Great Britainand France, and their allies, by which it was stipu-lated and agreed, that the river Mississippi, fromits source to the Iberville, should for ever afterform the boundary between the dominions of


Great Britain and those of France, in that part of 182&.North America, and between their respective Johnsonallies there. v.

6th. That the government of Virginia, at and Mlhtb.

before the commencement of this war, and at alltimes after it became a royal government, claimedand exercised jurisdiction, with the knowledge andassent of the government of Great Britain, in andover the country northwest of the river Ohio, andeast of the Mississippi, as being included withinthe bounds and limits described and establishedfor that colony, by the letters patent of May23di 1609; and that in the year 1749, a grant ofsix hundred thousand acres of-land, within thecountry northwest of the Ohio, and as part of Vir-ginia, was made by the government of Great Bri-tain to some of its subjects, by the name and styleof the Ohio Company.

7th. That at and before the commencement ofthe War- in 1756, and during its whole continuance,and at the time of the treaty of February 10th,1763, the Indian tribes or nations, inhabiting thecountry north and northwest of the Ohio, andeast of the" Mississippi, as far east as the river fall-ing into the Ohio called the Great Miami, werecalled and known by the name of the WesternConfederacy of Indians, and were the allies ofFrance in the war, but not her subjects, neyer hav-ing been in any manner conquered by her, and heldthe country in absolute sovereignty, as indepen-dent nations, both as to the right of jurisdiction andsovereignty, and the right of soil, except a fewmilitary posts, and a small territory around each,

547

CASES IN TIE SUPREME COURT

1823. which they had ceded to France, and she heldvmunder them, and among Which were the aforesaidJohnsonV. posts of Kaskaskias and Vincennes; and that

M'Intosh. these Indians, after the treaty, became the allies of

Great Britain, living under her protection as theyhad before lived under that .of France, but werefree and independenit, owing no allegiance to anyforeign power whatever, and holding their lands inabsolute property; the territories of the respec-tive tribes being separated from each other, anddistinguished by certain natural marks and boup-daries -to the Indians well known; and each tribeclaiming and exercising separate and absoluteownership, in and over its own territory, both asto the right of sovereignty and jurisdiction, andthe right of soil.

8th. That among the tribes of Indians, thusholding and, inhabiting the territory north andnorthwest of the Ohio, east of the Mississippi,and west of the Great Miami, within the limits ofVirginia, as described in the letters patent of May23d, 1609, were certain independent tribes or na-tions, called the Illinois or Kaskaskias, and thePiankeshaw or Wabash Indians; the first of whichconsisted of three several tribes united into one,and called the Kaskaskias, the Pewarias, and theCahoquias; that the Illinois owned, held, and in-habited, as their absolute and separate property,a l4rge tract of country within the last mentionedlimits, and situated on the Mississippi, Illinois,and Kaskaskias rivers, and on the Ohio below themouth of the Wabash; and the Piankeshaws,another large tract of country within the same


limits, and as their absolute and separate property, 1823.on the Wabash and Ohio rivers; and that these JohnsonIndians remained in the sole and absolute owner- V.ship and possession of the country in question, Ml'Intowh.

until the sales made by them, in the manner hereinafter set forth.

9th. That -on the termination of the war be-tween Great Britain and France, the Illinois In-diane, by the. name of the Kaskaskias tribes ofIndians, as fully representing all the Illinois tribesthen remaining, made a treaty of peace with GreatBritain, and a treaty of peace, limits, and amity,under her mediation, with the Six Nations, or Iro-quois, and their allies, then known and distin-guished b the name of the Northern Confederacyof Indians; the Illinois being a part o? the con-federacy then known and distinguished by .thename of the Southern Confederacy, and sore-times by that of the Wester4 Confederacy.

10th. That on the 7th of October, 1763, theKing of Great Britain made and published aproclamation, for the better regulation of thecountries ceded to Great Britain by that treaty,which prbclamation is referred to, and made partof the case.

11th. That from time immemorial, and alwaysup to the present time, all the Indian tribes, ornations of North America, and especially the Illi-nois and Piankeshaws, and other tribes holding,possessing, and inhabiting the said countries northand northeast of the Ohio, east of the Mississippi,and west of the Great Miami, held their respec-tive lands and territories each in common, the in-

549


dividuals of each tribe or nation holding the lands\and territories of such tribe in common with each

v. other, and there being among them no separatefi'lntosh. property in the soil; and that their sole method of

selling, granting, and conveying their lands, whe-ther to governments or individuals, always hasbeen, from time immemorial, and now is, forcertain chiefs of the tribe selling, to representthe whole tribe in every part of the transaction ;to make the contract, and execute the deed, onbehalf of the whole tribe; to receive for it theconsideration, whether in money or commodities,or both; and, finally, to divide such considerationamong the individuals of the tribe: and that theauthority of the chiefs, so acting for the wholetribe, is attested by the presence and assent of theindividuals composing the tribe, or some of them,and by the receipt by the individuals composingthe tribe, of their respective shares of the price,and inno other manner.

12th. That on the 5th of July, 1773, certainchiefs of the Illinois Indians, then jointly repre-presenting, acting for, and being duly authorizedby that tribe, in the manner explained above, did,by their deed poll, duly executed and delivered,and bearing date on that day, at the post of Kas-kaskias, then being a British military post, and ata public council there held by them, for and onbehalf of the said Illinois nation of Indians, withWilliam Murray, of the Illinois country, merchant,acting for himself and for Moses Franks andJacob Franks, of London, in Great Britain, Da-vid Franks, John Inglis, Bernard Gratz, Michael


Gratz, Alexander Ross, David Sproat, and James 1823.Milligan, ill of Philadelphia, in the province of Johnson

Pennsylvania; Moses Franks, Andrew Hamilton, V.William Hamilton, and Edmund Milne, of the 'I'Intosh.

same place; Joseph Simons, otherwise calledJoseph Simon, and Levi Andrew Levi of the townof Lancaster in Pennsylvania; Thomas Minshallof York county, in the same province; RobertCallender and William Thompson, of Cumber-land county, in the same province; John Campbellof Pittsburgh, in the same province; and GeorgeCastles and James Ramsay of the Illinois coun-try; and for a good and valuable consideration inthe said deed stated, grant, bargain, sell, alier,lease, enfeoff, and confirm, to the said WilliamMurray, Moses Franks, Jacob Franks, DavidFranks, John Inglis, Bernard Gratz, MichaelGratz, Alexander Ross, David Sproat, James Mil-ligan, Andrew Hamilton, William Hamilton, Ed-mund Milne, Joseph Simons, otherwise calledJoseph Simon, Levi Andrew Levi, Thomas Min-shall, Robert Callender, William Thompson, JohnCampbell, George Castles, and James Ramsay,their heirs and assigns for ever, in severalty, or toGeorge the Third, then King of Great Britain andIreland, his heirs and successors, for the use, be-nefit, and behoof of the grantees, their heirs andassigns, in severalty, by whichever of those te-nures they might most legally hold, all those twoseveral tracts or parcels of land, situated, lying,and being within the limits of Virginia, on theeast of the Mississippi, northwest of the Ohio,and west of the Great Miami, and thus butted

CASES IN THE SUPREME -COURT

182-3. and bounded: Beginning for one of the said tractoon the east' side of the Mississippi, at the mouth

JohnsonV. of the Heron creek, called by the French the

'tIutosh. river of Mary, being about a league below the

mouth of the Kaskaskias river, and runningthence a northward of east course, in a directline, back to the Hilly Plains, about eight leaguesmore or less; thence the same course, in a directline to the Crab Tree Plains, about seventeenleagues more or less; thence the same cotirse, ina direct line, to a remarkable place known by thename of the Big Buffalo Hoofs, about seventeenleagues more or less; thence the.same course, ina direct line to the Salt Lick creek, about sevenleagues more or less; then crossing the Salt Lickcreek, about one league below the ancient Shawa-nese town, in an easterly, or' a little to the northof east, course, in a direct line to the river Ohio,about four leagues more or less; then down theOhio, by its several courses, until it empties intothe Mississippi, about thirty-five leagues more orless; and then. up the Mississippi, by its severalcourses, to the place of beginning, about thirty-three leagues more or less: And beginning forthe other tract on the Mississippi, at a point di-rectly opposite to the mouth of the Missouri, andrunning up the Mississippi, by its several courses,to the mouth of the Illinois, about six leaguesmore or less; and thence up the Illinois, by itsseveial courses, to Chicagou tir Garlic creek,about ninety leagues, more or less; thence nearlya northerly course, in a direct line, to a certainremarkable place, being the ground on which a

552


battle was fought, aoout forty or fifty years before 1823.that time, between the Pewaria and Renard In- John

dians, about fifty leagues more or less; thence vby the same course, in a direct line, to two re- M'Into.

markable hills close together, in the middle of a

large prairie or plain, about fourteen leagues more

or less; thence a north of east course, in a directline, to a remarkable spring, known by the Indiansby the name of " Foggy Spring," about fourteenleagues more or less; thence the same course, ina direct line to a great mountain, to the northwestof the White Buffalo Plain, about fifteen leaguesmore or less; and thence'nearly a southwestcourse to the place of beginning, about fortyleagues more or less: To have and to hold thesaid two tracts of land, with all and singular theirappurtenances, to the grantees, their heirs andassigns, for ever, in severalty, or to the king, his

heirs and successors, to and for the use, benefit2or behoof of the grantees, their heirs and assigns,for ever, in severalty: as will more fully appearby the said deed- poll, duly executed under thehands anid seals of the grantors, and duly recordedat Kaskaskias, on the 2d of September, 1773,in the office of Vicerault Lemerance, a notary

public, duly appointed and authorized. This deed,with the several certificates annexed to or en-

dorsed on it, was set out at length in the case.13th. That the consideration in this deed ex-

pressed, was of the value of 24,000 dollars, cur-rent money of the United States, and upwards,and was paid and delivered, at the time of the

execution of the deed; by William Murray, oneVOL. V11. 70-

553


1813. of the grantees, in behalf of himself and theother grantees, to the Illinois Indians, who

Johnson

v. freely accepted it, and divided it among them-MIntosh. sefves: that the conferences in which the sale of

these lands was agreed on and made, and inwhich it was agreed that the deed should be exe-cuted, were publicly held, for the space of a month,at the post of Kaskaskias, and were attended bymany individuals of all the tribes of Illinois Indians,besides the chiefs, named as grantors in the deed ;that the whole transaction was open, public, andfair, and the deed fully explained to the grantorsand other Indians, by the sworn interpreters ofthe government, and fully understood by thegrantors and other Indians, before it was execu-ted ; that the several witnesses to the deed, andthe grantees named in it, were such persons, andof such quality and stations, respectively, as theyare described to be in the deed, the attestation,and the other endorsements on it; that the gran-tees did duly authorize William Murray to act forana represent them, in the purchase of the lands,and the acceptance of the deed ; and that the twotracts or parcels of land which it describes, andpurports to grant, were then part of the landsheld, possessed, and inhabited by the Illinois In-dians, from time immemorial, in the manner al-ready stated.

14th. That all the persons named as granteesin this deed, were, at the time of its execution,and long before, subjects of the crown of GreatBritain, and residents of the several places namedin .the deed as their places of residence ; and that

OF THE INITED STATES.

they entered into the land, under and by virtue of 1823.the deed, and became seised as the law requires. -• $ohnson

15th. That on the 18th of October, 1775, Ta- v.bac, and certain other Indians, all being chiefs of 1zIntosh.the Piankeshaws, and jointly representing, actingfor, and duly authorized by that nation, in themanner stated above, did, by their deed poll, dulyexecuted, and bearing.date on the day last men-tioned, at the post of Vincennes, otherwise calledpost St. Vincent, then being a British militarypost, and at a public council there held by them,for and on behalf of the Piankeshaw Indians, withLouis Viviat, of the Illinois country, acting forhimself, and for the Right Honourable John, Earlof Dunmore, then governor -of Virginia, the Ho-nourable John Murray, son of the said Earl, Mo-ses Franks and Jacob Franks, of London, inGreat Britain, Thomas Johnson, jr. and JohnDavidson, both of Annapolis, in Maryland, Wil-liam Russel, Matthew Ridley, Robert Christie, sen.and Robert Christie, jr., of Baltimore town, inthe same province, Peter Campbell, of Piscata-way, in the same province, William Geddes, ofNewtown Chester, in the same province, collectorof his majesty's customs, David Franks and Mo-ses Franks, both of Philadelphia, in Pennsylva-nia, William Murray and Daniel Murray, of theIllinois country, Nicholas St. Martin and JosephPage, of the 'same place, Francis Perthuis, lateof Quebec, in Canada, but then of post St. Vin-cent, 4nd for good and valuable considerations,.in the deed poll mentioned and enumerated, grant,bargain, sell, alien, enfeoff, release, ratify, and

555


1823. confirm to the said Louis Viviat, and the other,,v.., persons last mentioned, their heirs- and assigns,

ohsoV. equally to be divided, or to George III. then kingM'Inftosh. of Great Britain and Ireland, his heirs and suc-

cessors, for the use, benefit, and behoof of all theabove mentionQd grantees, their heirs. and assigns,in severalty, by which ever of those tenures theymight most legally hold, all those two severaltracts of land, in the deed particularly described,situate, lying, and being northwest of the Ohio,east of the Mississippi, and west of the GreatMiami, within the limits of -Virginia, and on bothsides of the Ouabache, otherwise called the Wa-bash; which two tracts of land are containedrespectively within the following metes and bounds,courses and distances, that is to say: beginningfor one of the said tracts at the mouth of a rivuletcalled Riviere du Chat, or Cat river, where itempties itself into the Ouabache or Wabash, byits several courses, to a place called Point Coupee,about twelve leagues abovepost St. Vincent, beingforty leagues, or thereabouts, in length, on thesaid river Ouabache, from the place of beginning,with forty leagues in width or breadth on the eastside, and thirty leagues in breadth or width on thewest 'side of that river, to be continued alongfrom the place of beginning, to Point Coupee.And beginning for the other tract at the6 mouthof White river, where it empties into the Oua-bache, about twelve leagues below post St. Vincent,and running thence down the Ouabache, by itsseveral courses, until it empties into the Ohio;being from- White river to the Ohio, about fifty-three leagues in length, more or less, with fort)

556


leagues in width or breadth on the east side, and 1823.thirty in width or breadth on the west side of the Johnw n

Ouabache, to be continued along from the White v.river to the Ohio; with all the rights, liberties, M'Ito.

privileges, hereditaments, and appurtenances, tothe said tract belonging; to have and to hold tothe grantees, their heirs and assigns, for ever, inseveralty, or.to the king, his heirs and successors,for the use, benefit, and behoof of the grantees,their heirs and assigns, as will more fully appearby the deea itself, duly executed under the handsand seals of the grantors, and duly recorded atKaskaskias, on the 5th of December, 1775, inthe office of Louis Bomer, a notary public, dulyappointed and authorized. This deed, with theseveral certificates annexed to or endorsed on it,wasset out at length.

16th. That the consideration in this deed ex-pressed, was of the value of 31,000 dollars, cur-rent money of the United States, and upwards,and was paid and delivered at the time of theexecution of the deed, by the grantee, LewisViviat, in behalf of himself and the other gran-tees, to the Piankeshaw Indians, who freely ac-cepted it, and divided it among themselves; thatthe conferences in which the sale of these twotracts of land was agreed on and made, and inwhich it was agreed, that the deed should be exe-cuted, were publicly held for the space of a month,at the post of Vincennes, or post St. Vincent,and were attended by many individuals of thePiankeshaw nation of Indians, besides the chiefsnamed as grantors in the deed; that the whole

. 557


1823. transaction was open, public, and fair, and theSdeed fully explained to the grantors and other In-Johnson

v. dians, by skilful interpreters, and fully understoodiMrIntos2, by them before it was executed; that it was exe-

cuted in the presence of the several witnesses bywhom it purports to have been attested, and wasattested by them ; that the grantees..were all sub-jects of the crown of Great Britain, and were ofsuch quality, station, and residence, respectively,Ias they are, described in the deed to be ; that thegrantees did duly authorize Lewis Viviat to actfor, and represent them, in the purchase of thesetwo tracts of land, and in the acceptance* of thedeed; that these tracts of land Were then part ofthe lands held, possessed, and inhabited by thePiankeshaw Indians, from time immemorial, as istated above; and that the several granitees under

this deed entered into the land which it purportsto grant, and became seised as the law requires..

17th. That on the 6th of May, 1776, the colonyof Virginia threw off its dependence on the crownand government of Great Britaii), and declareditself an independent State and government, withthe limits prescribed and established by the letterspatent of May 23d, 1609, as curtailed and restrict-ed by the letters patent establishing the coloniesof Pennsylvania, Maryland,,and Carolina, a. bythe treaty of February 10th, 1763, between GreatBritain and France; which limits, so curtailedand restricted, the State of Virginia, by its con-stitution and form of government, declared shoudbe and remain the limits of the State, and shouldbound its western and northwestern extent.


18th. That on the 5th of October, 1778, the 1823.General Assembly of Virginia, having .taken by Johmnoarms the posts of Kaskaskias and Vincennes, or V.St. Vincent, from the British forces, by whom they M'IntOwb.

were then held, and driven those forces from thecountry northwest of the Ohio, east of the Missis-sippi, and west of the Great Miami, did, by an actof Assembly of that date, entitled, " An act for es-tablishing the county of Illinois, and for the moreeffectual protection and defence thereof," erectthat country, with certain other portions of terri-tory within the limits of the State, and northwestof the Ohio, into a county, by the name of thecounty of Illinois.

19th. That on the 20th of December, 1783, theState of Virginia, by an act of Assembly of thatdate, authorized their Delegates in the Congressof the United States, or such of them, to the num-ber of three at least, as should be assembled inCongress, on behalf of the State, and by properdeeds or instruments in writing under their handsand seals, to convey, transfer, assign, and makeover to the United States, in Congress assembled,for the benefit of the said States, all-right, title,and claim, as well of soil as jurisdiction, whichVirginia had to the territory or tract of countrywithin her limits, as defined and prescribed by theletters patent of May 23d, 1609, and lying to thenorthwest of the Ohio; subject to certain limita-tions and conditions in the act prescribed and spe-cified; and that on the 1st of March, 1784, Tho-mas Jefferson, Samuel Hardy, Arthur Lee, andJames Monroe, then being four of the Delegates

559


1823. of Virginia to the Congress of the United States,v did, by their deed poll, under their hands andJohnsonV. " seals, in pursuance and execution of the authority

N{ntosh. to them given by this act of Assembly, convey,transfer, assign, and make over to the UnitedStates, in Congress assembled, for the benefit ofthe said States, all right, title, and claim, as wellof soil as jurisdiction, which that State had to theterritory northwest of the Ohio, with the reserva-tions, limitations, and conditions, in the act ofAssembly prescribed;' which cession the UnitedStates accepted.

20th. That on the twentieth day of July, in theyear of our Lord one thousand eight hundred andeighteen, the' United States, by their officers dulyauthorized for that purpose, did sell, grant, andconvey to the defendant in this action, WilliamM'Intosh, all. those several tracts or parcels ofland, containing 11,560 acres, and butted, bounded,and described, as will fully appear in and by thepatent for the said lands, duly executed, whichwas set out at length.

21st. That the lands described .and granted inand by this patent, are situated within the State ofIllinois,' dnd are contained within the lines of thelast, or second of the two tracts, described andpurporting to be granted and conveyed to LouisViviat and others, by the deed of October 18th,1775; and that William M'Intosh, the defendant,entered upon these lands under, and by virtue ofhis patent, and became possessed thereof beforethe institution of this suit.

22d. That Thomas Johnson, one of the grantees,


in, and under the deed ot October 18th, 1775; 1823.departed this life on or about the 1st day of Octo- Johnson

ber, 1819, seised of all his undivided part or share V.of, and in the two several tracts of land, described M'htosb.and purporting to be .granted and conveyed tohim and others by that deed, having first dulymade and published his last will and testament inwriting, attested by three credible witnesses,which he left in full force, and by which be de-vised all his undivided share and part of thosetwo tracts of land, to his son, Joshua Johnson,and his heirs, and his grandson, Thomas J. Gra-ham, and his heirs, the lessors of the plaintiff inthis action, as tenants in common.

23d. That Joshua Johnson, and Thomas J. Gra-ham, the devisees, entered into the two tracts ofland last above imentioned, under and by virtue ofthe will, and became thereof seised as the lawrequires. That Thomas Johnson, the granteeand devisor, during his whole life, and at the time6f his death, Was an inhabitant 6nd citizen of theState of Maryland ; that Joshua Johnson, andThomas J. Graham, the lessors of the plaintiff,now are, and always have been, citizens of thesame State; that the defendant, WilliamM'In-tosh, now is, and at and before the time of bring-ing this action was, a citizen of the State of Illi-nois; and that the matter in dispute in this actionis of the value of 2000 dollars, current money ofthe United States, and upwards.

24th. And that neither William Murray, nor anyother of the grantees under the deed of July the5th, 1773, nor Louis Viviat, nor any other of the

VOL- VIII. 71


1823. grantees under the deed of October the 8th,S1775, nor any person for them, or any of them,Johnson

V. ever obtained, or had the .actual possession, under

M'Intosh". and by virtue of those deeds, or either of them,

of any part of the lands in them, or either ofthem, described and purporting to be granted ;but were prevented by the war of the Americanrevolution, which soon after commenced, and bythe disputes and troubles which preceded it, fromobtaining such possession ; and that since the ter-mination of the war, and before it, they have re-peatedly, and at various times, from the year 1781,till the year 1816, petitioned the Congress of theUnited States to acknowledge and confirm theirtitle to those lands, under the purchases and deedsin question, but without success.

Judgment being given for the defendant on thecase stated, the plaintiffs brought this writ of error.

Feb. 17th. The cause was argued by Mr. Harper and Mr.18th, and

i9th. Webster for the plaintiffs, and by Mr. Winderand Mr. Murray for the defendants. But as thearguments are so fully stated in the opinion of theCourt, it is deemed unnecessary to give any thingmore than the following summary.

On the part of the plaintiffs, it was contended,1. That upon the facts stated in the case, thePiankeshaw Indians were the owners of the landsin dispute, at the time of executing the deed ofOctober 10th, 1775, and had power to sell. Butas the United States had purchaserd the samelands of the same Indians, both parties claimfrom the same source. It would seem, therefore,fo be uinnecessary, and merely speculative, to dis-

OF THE UNITED-STATES.

duss the question respecting the sort of title .or 1823.ownership, which may be thought to belbng to

Johnsonsavage tribes, in the lands on which they live. V.Probably, however, their title by occupancy is to M'Intosh.

be respected, as much as that of an individual,obtained by the same *ight, in a divilized state.The circumstance, that the members of the sd-ciety held in common, did not affect the strengthof their title by occupancy.a In the memorial, ormanifesto, of the British government, in 1755, arighi of soil in the Indians is admitted. It is alsoadmitted in the treaties of Utrecht and Aix laChapelle. The same opinion has beentexpressedby this Court,' and by the Supreme Coter of New-York. In short, all, or nearly all, the lands inthe United States, is .holden under purchases fromthe Indian nations; and the only question in thiscase must be, whether it be competenl to indivi-duals to make such purchases, or whether that bethe exdlusive prerogitive of government.

2. That the British king's proclamation ofOctober 7th, 1763, could not affect this right ofthe Indians to sell ; because they were not Britishsubjects, nor in any manner bound by the autho-rity of the British government, legislative or ex-ecutive. And, because, even admitting them tobe British subjects, absblutely, or sub modo, theywere still proprietors of the soil, and could not bedevested of their rights of property, or any of its

a Grotius, deJ.B. acP. 1.2. c.2.s.4. 1.2. c.24. s.9. Pljfen.1. 4. c. 5. s. 1.3.

b Fletcher v. Peck, 6 Craich's Rep. 646.c Jackson v. Wood, 7 Johlns. Rep. 296.

563


1823. incidents, by a mere act of the executive govern-v ment, such as this proclamation.

Johnson

V. ,3. That the proclamation of 1763 could notM'Intosh. restrain the purchasers under these deeds from

purchasing; because the lands lay within the li-mits of the colony of Virginia, of which, or ofsome other British colony, the purchasers, allbeing British subjects, were inhabitants. Andbtcause the king had not, within the limits ofthat colonial government, or any other, any powerof prerogative legislation; which is confined tocountries newly conquered, and remaining in themilitary possession of the monarch, as supremechief of the military forces of the nation. Thepresent claim has long been known to the govern-ment of the United States, and is mentioned inthe Collection of Land Laws, published under-public authority. The compiler of those lawssupposes this title void, by virtue of the proclama-tion of 1763. But we have the positive authorityof a solemn determination of'the Court of King'sBench, on this very proclamation, in the celbbratedGienada case, for asserting that it could have nosuch effect.a This country being a new conquest,and a military possession, 'the crown might exer-cise legislative powers, until a local legislaturewas establ ished. But the establishment of agovernment establishes a system of laws, andexcludes the power of legislating by proclamation.The proclamation could not have the force of law¢Vthin the chartered limits of Virginia. A pro-

a -Campbell v. Hall, 1 Cowp. Rep. 204,


clamation, -that no person should purchase land in 1823.England or Canada, would be clearly void. John

4. That the act of Assembly of Virginia, passed v.in May, 1779,; cannot affect the right of the plain- 4.,htosh.

tiffs, and others claiming under these deeds; be-cause, on general principles, and by the constitu-tion of Virginia, the legislature was not competentto take away private, vested rights, or appropriateprivate property to public use, under the circum-.stances of this case. And because the act is not

a This statute is as follows: " An act for declaring and assertingthe rights of this Commonwealth, concerning purchasing landsfrom Indian natives. To remove and prevent all doubt concern-ing purchases of lands from the Indian natives, Be it declared bythe General Assembly, that this Commonwealth hath the exclusiveright of pre-emption from the Indians, of all the lands within tielimits of its own chartered territory, as described by the actand constitution of government, in the year 1776. That 'no per-son or persons whatsoever, have, or ever had, a right to purchaseany lands within the same, from any Indian nation, except onlypersons duly authorized to make such purchases on the publicaccount, formerly for the use and benefit of the colony, and latelyof the Commonwealth, and that such exclusive right or pre-emp-tion, will and ought to be maintained by this Commonwealths tothe utmost of its power.

"( And be it further declared and enacted, That every purchaseof lands heretofore made, by, or on behalf of, the crown of Englandor Great Britain, from any Indian nation or nations, within thebefore mentioned limits, doth and ought to enure for ever, to andfor the use and benefit of this Commonwealth, and to or for noother use or purpose whatsoever; and that all sales and deedswhich have been, or shall be made by any Indian or Indians, orby any Indian nation or nations, for lands within the said limits,to or for the separate use of any person or persons whatsoever.shall be, and the same are, hereby declared utterly void and of noefrect."


1823. contained in the revisal of 1794, and must, there.\fore, be considered as repealed ; and the repeal

JohnsonV. reinstates all rights that might have been- affected

M'Intosh. by the act, although the territory, in which the

lands in question lie, was- ceded to the UnitedStates before the repeal. The act of 1779 waspassed after the sales were made, and it cannotaffect titles previously obtained. At the timeof the purchases there was" no law of Virginiarendering such purchases void. 'If, therefore,the purchases were not affected by the procla-mation of 1763, nor by the act of 1779, the ques-tion of their validity comes to the general inquiry,whether individuals, in Virginia, at thd time ofthis purchasp,, could legally obtain Indian titles.In New-England, titles have certainly been ot-tained iii this mode. But whatever may be saidon the more general question, and in referenceto other colonies or States, the fact being, that inVirginia there was no statute existing at the timeagainst, such purchases, mere general considera-tions would not apply. It may be true, that inalmost all the colonies, individual purchases fromthe Indians were illegal ; but they were renderedso by express provisions of the local law. InVirginia, also, it may be true, that such purchaseshave generallybeen prohibited ; but at the time thepurchases now in question were made, ihere wasno prohibitory law in existence. The old coloniallaws on the subject had all been repealed. Theact of 1779 was a private act, so far as respectsthis case. It is the same as if it had enacted,that these particular deeds were void. Such acts


bind only those who are parties to them, who sub- 1823.mit their case to the Legislature. Johnson

On the part of the defendants, it was insisted, T.

that the uniform understanding and practice of M'Intosb.

European nations, and the settled law, as laiddown by the tribunals of civilized states, aeniedthe right of the Indians to be considered as inde-pendent communities, having a permanent pro-perty in the soil, capable of alienation to privateiidividuals. They remain in a state of nature,and have never been admitted into the generalsociety of nations.a All the treaties and nego-tiations between the civilized powers of Europeand of this continent, from the treaty of Utrecht,in 1713, to that of Ghent, in 1814, have uniformlydisregarded their supposed right to the territoryincluded within the jurisdictional limits of thosepowers.' Not only has the practice of all civilizednations been in conformity with this doctrine, butthe whole theory of their titles to lands in Ame-rica, rests upon the hypothesis, that the Indianshad no right of soil as sovereign, independentstates. Discovery is the foundation of title, inEuropean nations, and this overlooks all proprie-tary rights in the natives.0 The sovereignty and

a Penn v. Lord Baltimore, 1 tee. 445. 2 Rutherforth'a Inst.29. Locke, Government, b. 2. c. 7. s. 87-89. c. 12. s. 143. C.9. s. 123-130. Jeferson's Notes, 126. Colden'a Hist. FiveNations, 2-16. Smith's Rist. New-York, 35-41. Montesguieu,E.4,rit des Loix, 1. 18. c. 11, 12, 13. Smith's IMealth of Na-Vz

tions, b. 5. c. 1.b 5 4nnual Reg. 56. 233. 7 Nites' Reg. 229.c Marten's Law of Vations, 67.69. Vattel, Droit des Gens.

1 2. c..7. s. 83. 1. 1. c. 18. s. 204,205.

567

CASES- IN THE SUPREME COURT

1823. eminent domain thus acquired, necessarily pre-cludes the idea of any other sovereignty existingJohnson

.V within the same limits. The subjects of the dis-X'Intosh. covering nation moist necessarily be bound by the

declared sense of their own government, as tothe extent of thiA sovereignty, and the domainacquired with it. Even if it should be admittedthat the Indians were originally an independentpeople, they have ceased to be so. A nation thathas passed under the dominion of another, is nolonger a sovereign state." The same treaties andnegotiations, before referred to, show their de-pendent condition. Or, if it be admitted that theyare now independent and foreign states, the titleof the plaintiffs would still be ifivalid: as granteesfrom the Int iaus, they must take according totheir laws of property, and as Indian subjects.The law of every dominion affects all persons andproperty situate within it ;b and the Indians neverhad any idea of individual property in lands. Itcannot be said that the lands conveyed were dis-joined from their dominion; because the granteescould not take the sovereignty and eminent do-main to themselves.

Such, then, being the nature of the Indian titleto lands, the extent of their right of alienationmust depend upon the laws of the dominion underwhich they live. They are subject to the sove-reignty of the United States. The subjectionproceeds from their residence withih our territory

a Coew 1 1. S. 4 11.b Cozop. Rep. 204.


and jurisdiction. It is unnecessary to show, that I82-3.they are not citizens in the ordinary sense of thatterm, since they are destitute of the most essential v.rights which belong to that character. They are Mqwnth.

of that class who are said by jurists not to be citi-zens, but perpetual inhabitants with diminutiverights.a The statutes of Virginia, and of all the othercolonies, and of the United States, treat them asan inferior race of people, without the privilegesof citizens, and under the perpetual protectionana pupilage of the government. The act ofVirginia of 1662, forbade purchases from the In-dians, and it does not appear that it was ever re-pealed. The act of 1779 is rather to be regardedas a declaratory act, founded upon what had alwaysbeen regarded as the settled law. These statutesseem to define sufficiently the nature of the Indiantitle to lands; a mere right of usufruct and habi-tation, without power of alienation. By the lawof nature, they had not acquired a fixed propertycapable of being transferred. The measure ofproperty acquired by occupancy is determined, ac-cording to the law of nature, by the extent ofmen's wants, and their capacity of using it to sup-;ply them.' It is a violation of the rights of othersto exclude them from the use of what we do notwant, and they have an occasion for. Upon thisprinciple the North American Indians could haveacquired no proprietary interest in the vast tracts

a Trattel, 1. 1. c. 19. s. 213.b Grotius, I, 2. c. 11. Barbeyr. Pufend. 1. 4. '. ,i. s. 2. 4.

2 BL Comm. 2. Piffend. 1. 4. c. 6. s. s. Locke on Government,b. 2. c. 5. s. 26. S4-40.

VOL. VIIL 72

569


1826. of territory which they wandered over; and theirSright to the lands on which they hunted, 6ould

JobnsonV. not be considered as superior to that which is ac-

WrItosh. quired to the sea by fishing in it. The use in the

one case, as well as the other, is not exclusive."According to every theory of property, the Indianshad no individual rights to land; nor had theyany collectively, or in their. national capacity; forthe lanids occupied by each tribe were not used bythem in such a manner as to prevent their beingappropriated by a people of cultivators. All theroprietary rights of civilized nations on this con-

tnent are founded on this principle. The rightdeiived from discovery and conquest, can rest onno other basis; and all existing titles depend onthe fundamental title of the crown by discovery.The title of the crown (as representing the nation)massed to the colonists by charters, which wereabsolute grants of the soil; and it was a first prin-ciple in colonial law, that all titles must be derivedfrom the crown. It is true that, in some cases,purchases were made by the colonies from theIndians; but this was merely a measure of policyto prevent hostilities; and William Penn's pur-chase, which was the most remarkable transactionof this kind, was not deemed to add to thestrength of his title.' In most of the colonies, the

a Locke, c. 5. s. 36-48. Grotius, 1. 2. c. 11.s. 2. Montes-quieu, tom. 2. p. 63. Chalmers' Polit. Annals, 5. 6 Cranch'sRep. 87.

b Penn v. Lord Baltimore, 1 Ves. 444. Chalmers' Pollt..4nnals, 644. Sullivan's Land Tit. c. 2. Smith's Hist. N. Y1-4,5. i84.


doctrine was received, that all titles to land must 182$.be derived exclusively from the crown, upon the Johmn

principle that the settlers carried with them, not Y.only all the rights, but all the duties of English- MIntosr

men; and particularly the laws of property, so faras they are suitable to their new condition. InNew-England alone, some lands have been heldunder Indian deeds. 'But this was an anomalyarising from peculiar local and political causes.'

As to the effect of the proclamation of 1763': ifthe Indians are to be regarded as independentsovereign states, then, by the treaty of peace,they became subject to the prerogative legislationof the crown, as a conquered people, in a terri-tory acquired, jure belli, and ceded at the peace.-If, on-the contrary, this country be regarded as aroyal colony, then the crown had a direct powerof legislation; or at least the power of prescribingthe limits within which grants of land and settle-ments should be made within the colony. Thesame practice always prevailed under the proprie-tary governments, and has been followed by thegovernment of the United States.

Mr. Chief Justice MARSHALL delivered the opi- AMarch 10m.nion of the Court. The plaintiffs in this causeclaim the land, in their declaration mentioned,under two grants, purporting to be made, the firstin 1773, and the last in 1775, by the chiefs of cer-

a 1 1I. Comm. 107. 2 P. Wins. 75. 1 Salk. j I1. 616.b Sutliv. Land Tit. 45.c Cowp. 204. 7 Co. Rep. IT b. 2 M'eriv. Rep. 14a.


12. tain Indian tribes, constituting the Illinois and the'V .Piankeshaw nations; and the question is, whether

v. this title can be recognised in the Courts of the'q' . United States ?

The facts, as stated in the case agreed, show theauthority of the chiefs who executed this convey-ance, so far as it could be given by their ownpeople; and likewise show, that the particulartribes for whom these chiefs acted were in rightfulpossession of the land they sold. The inquiry,therefore, is, in a great measure, confined to thepower of Indians to give, and of private individualsto receive, a title which can be sustained in theCourts of this country.

As the right of society, to prescribe those rulesby which property may be acquired and preservedis not, and cannot be drawn into question; as thetitle to lands, especially, is and must be admittedto depend entirely on the law of the nation inwhich they lie ; it will be necessary, in pursuingthis inquiry, to examine, not singly those princi-ples of abstract justice, which the Creator of allthings has impressed on the mind of his creatureman. and which are admitted to regulate, in agreat degree, the rights of civilized natims, whoseperfect independence is acknowledged; but thoseprinciples also which our own government hasadopted in the particular case, and given us as therule for our decision.

On the discovery of this immense continent,the great nations of Europe were eager to appro-priate to themselves so much of it as they couldrespectively acquire. Its vast extent offered an


ample field to the ambition and enterprise of all; 123,and the character and religion of its inhabitants John. a

afforded an apology for considering them as a v.people over whom the superior genius of Europe M'into.

might claim an ascendency. The potentates ofthe old world found no difficulty in convincingthemselves that they made ample compensation tothe inhabitants of the new, by bestowing on themcivilization and Christianity, in exchange for un-limited independence. But, as they were all inpursuit of nearly the same object, it was necessary,in order to avoid conflicting settlements, and con-sequent war with each other, to establish a prin-ciple, which all should acknowledge as the law bywhich the right of acquisition, which they all as-serted, should be regulated as between themselves.This principle was, that discovery gave title tothe government by whose subjects, or by whoseauthority, it Was made, against all other Europeangovernments, which title might be consummatedby possession.

The exclusion of all other Europeans, necOs- Dixovery, tbaooriginal foun-

sarily gave to the nation making the discovery the datorttlestland on Lke

sole right of acquiring the soil from the natives, Tme1-co m-trient, as be-

and establishing settlements upon it. It was a right ,,,.en the dir-with which no Europeans could interfere. It was (ejent Eo,

right which all asserted ior themselves, and to r a-n a -quests and tet-

the assertion of which, by others, all assented. dement, wer,made here.

Those relations which were to exist betweenthe discoverer and the natives, were to be regulatedby themselves. The rights thus acquired beingexclusive, no other power could interpose betweenthem.


1823. In the establishment of these relations, therights of the original inhabitants were, in no in-J'ohnson

v. stance, entirely disregarded; but were necessarily,DIW03& to a considerable extent, impaired. They were

admitted to be the rightful occupants of the soil,with a legal as well as just claim to retain posses-sion of it, and to use *it according to their owndiscretion; but their rights to complete sovereignty,as independent nations, were necessarily dimi-nished, and- theii power to dispose of the soil attheir own will, to whomsoever they pleased, wasdenied by the original fundamental principle, thatdiscovery gave exclusive title to those who made it.

The Etuopean While the different nations of Europe respectedgovrn'Tentsaste.d the the right of the natives, as occupants, they as-e.xclusive right . .

orantingthe serted the ultimate dominion to be in themselves;cil to indivi-

duals, subject and claimed and exercised, as a consequence ofonly to the on . h. .u.toth

dian right ofthis ultimate dominion, a power to grant the soil,occupancy. while yet in possession of the natives. These

grants have been understood, by all, to convey atitle to the grantees, subject only to the Indianright of occupancy.

Practice of The history of America, from its discovery tooin, France

tlnd, a.3 the present day, proves, we -think, the universalEngland. recognition of these principles.

Spain did not rest her title solely on the grantof the Pope. Her discussions respecting boun-dary, with France, with Great Britain, and withthe United States, all show that she placed it onthe rights given by discovery. Portugal sustainedher claim to the Brazils by the same title.

France, also, founded her title to the vast terri-tories she claimed in America oii discovery. How-


ever conciliatory her conduct to the natives may 1823.have been, she still asserted her right of dominion Johanover a great extent of country not. actually settled I.by Frenchmen, and her exclusive right to acquire M'IntO.

and dispose of the soil which remained in the oc-cupation of Indians. Her monarch claimed allCanada and Acadie, as colonies of France, at atime when the French population was very incon-siderable, and the Indians occupied almost thewhole country. He also claimed Louisiana, com-prehending the immense territories watered by theMississippi, and the rivers which empty into it, bythe title of discovery. The letters patent grantedto the Sieur Demonts, in 1603, constitute himLieutenant General, and the representative of theKing in Acadie, which is described as stretchingfrom the 40th to the 46th degree of north latitude;with authority to extend the power of the Frenchover that country, and its inhabitants, to give lawsto tie people, to treat with the natives, and en-force the observance of treaties, and to parcelout, and give title to lands, according to his ownjudgment.

The States of Holland also made acquisitionsin America, and sustained their right on thecommon principle adopted by all Europe. Theyallege; as we are told by Smith, in his History ofNew-York, that Henry Hudson, whb sailed, asthey say, under the orders of their East India Com-pany, discovered the country from the Delawareto the Hudson, up which he sailed to the 43d de-gree of north latitude; and this country theyclaimed under the title acquired by this voyage.

575


1f32J. Their first object was commercial, as appears bya grant made to-a company of merchants in 1614;

V. but in 1621, the States- General made, as we areMqnto0r. told by Mr. Smith, a grant of the country to the

West India Company, by the name of New Ne-therlands.

The claim of the Dutch was always contested.by the English; not because they questioned thetitle given by discovery, but because they insistedon being themselves the rightful claimants undertimt title. Their pretensions were finally decidedby the sword.No one of the powers of Europe gave its full

assent to this principle, more unequivocally tbairEngland. The documents upon this sufijet.araample and complete. So early as the ,eat 1496.,her menareh granted a commission to the Cabots,to discover countries then unknown to (014istianpeple, and to take possession of them in thename of the king of England. Two years after-wards, Cabot proceeded on this voyage, And dis-'covered the continent of North Ameriba, alongwhich he sailed as far south as Virginia, 'Th thisdiscovery the English trace their title.

In this first effort made by the English govern-ment to acquire territory on this continent, weperceive a complete recognition of the priniciplewhich has been mentioned. The right of dis-eovery given by this commission, is confined, tocountries- "then unknown to all Christian people ;"and of these countries Cabot was empowered totake possession in the name of the king of Eng-land. Thus asserting a right to take possession,


notwithstanding the occupancy of the natives, who 1823.were heathens, and, at the same time, admitting Jobmathe prior title of any Christian people who may V.have made a previous discovery. MlInth.

The same principle continued, to be recognised.The charter granted to Sir Humphrey Gilbert, in1578, authorizes him to discover and take posses-sion of such remote, heathen, and barbarouslands, as were not actually possessed by anyChristian prince or people. This charter was af-terwards renewed to Sir Walter Raleigh, in nearlythe same terms.

By the charter of 1606, under which the first per-manent English settlement on this continent wasmade, James I. granted to Sir Thomas Gates andothers, those territories in America lying on the sea-coast, between the 34th and 45th degrees of northlatitude, andwhich either belonged to that monarch,or were not then possessed by any other Christianprince orpeople. The grantees were divided intotwo Ce.mpanies at their own request. The first, orsouthern colony, was directed to settle between the34th and 41st degrees of north latitude; and thesecond, or northern colony, between the 38th and45th degrees.

In 1609, after some expensive and not verysuccessful attempts at settlement had been made,a new and more enlarged charter was given bythe crown to the first colony, in which the kinggranted to the" Treasurer and Company of Adven-turers of the city of London for the first colony inVirginia," in absolute property, the lands extend-ing along the seacoast four hundred miles, arid

VodL. VIII. 7

577


1823. into the land throughout from sea to sea. Thisv charter, which is a part of the special verdict inJohn"m

v. this cause, was annulled, so far as respected the,1Intosh. rights of the company, by the judgment of the

Court of King's Bench on a writ of quo warranto;but the whole effect allovied to this judgment was,to revest in the crown the powers of government,and the title to the lands within its limits.

At the solicitation of those who held under thegrant to the second or northern colony, a new andmore enlarged charter was granted to the Dukeof Lenox and.others, in 1620, who were denomi-nated. the Plymouth Company, conveying to themin absolute property all the lands between the40th and 48th degrees of north latitude.

Under this patent, New-England has been in agreat measure settled. The company conveyedto Henry Rosewell and others, in 1627, that terri-tory which is now Massachusetts ; and in 1628, acharter of incorporation, comprehending the pow-ers of government, was granted to the purchasers.

Great part of New-England was granted bythis. company, which, at length, divided their re-maining lands among themselves; and, in 1635,surrendered their charter to the crown. A patentwas granted to Gorges for Maine, which was al-lotted to him in the division of property.

All the grants made by the Plymouth Com-pany, so far as we can learn, have been respected.In pursuance of the same principle, the king, in1664, granted to the Duke of York the countryof New-England as far south as the Delaware


bay. His royal highness transferred New-Jer- 1828.sey to Lord Berkeley and Sir George Carteret.

In 1663, the crown granted to Lord Clarendonand others, the country lying between the 36thdegree of north latitude and the river St. Mathes;and, in 1666, the proprietors obtained from thecrown a new charter, granting to them that pro-vince in the king's dominions in North Americawhich lies from 36 degrees 30 minutes north lati-tude to the 29th degree, and from the Atlanticocean to the South sea.

Thus has our whole country been granted bytimecrown while in the occupation of the Indians.These grants purport to *convey the soil as well asthe right of dominion to the grantees. In thosegovernments which were denominated rQyal,where the right to the soil was not vested in indi-viduals, but remained in the crown, or was vestedin the colonial government, the king claimed andexercisbd the right of granting lands, and of dis-mezbering the government at his will. Thegrants made out of the two original colonies, afterthe: resumption of their charters by the crown, areexamples of this. The governments of New-England, New-York, New-Jersey, Pennsylvania,Maryland, and a-part of Carolina, were thus cre-ated. In all of them, the soil, at the time thegrants were made, was occupied by the Indians.Yet almost every title'within those governments isdependent on these grants. In some instances,the soil was conveyed by the crown unaccompa-nied by the powers of government, as in the case.of the northern neck of Virginia. It has never

CASES IN TilE SUPREME COURT

1823. been objected to this, or to any other similar grant,\ that the title as well as possession was in the In-Iohrn

V. dians when it was made, and that it passed nothing• !'Intmh. on that account.

These various patents cannot be considered asnullities ; nor can they be limited to a mere grantof the powers of government. A charter intendedto convey political power only, would never con--*ain words expressly grant;ng the land, the soil,and the waters. Some of them purport to conveythe soil alone; and in those cases in which thepowers of government, as well as the soil, areconveyed to individuals, the crown has always ac-knowledged itself to b'e bound by the grant.Though the power to dismember regal govern-ments was asserted and .exercised, the power todismember proprietary governments was not claim-ed; and, in some instances, even after the powersof government were revested in the crown, thetitle of the proprietors to the soil was respected.

Charles II. was extremely anxious to acquirethe property of Maine, but the grantees sold it toMassachusetts, and he did not venture to contestthe right of that colony to the soil. Th0 Caro-linas were originally proprietary governments. In1721 a revolution was effected by the people, whoshook off their obedience to the proprietors, and.declared their dependence immediately on thecrown. The king, however, purchased the titeof those who were disposed to sell. One of them,Lord Carteret, surrendered his interest in tb go-vernment, but retained his title to the soil. That


title was respected till the revolution, when it was 1823.forfeited by the laws of war. Johm=r

Further proofs of the extent to which this prin- ..ciple has been recognised, will be found in the MIntos

history of the wars, negotiations, and treaties, Recogiion o1

which the different nations, claiming territory in the sae prn-ci ple In the

America, have carried on, and held with each w, s negotia-tions and

other. treaties, be-ee the dif-

The contests between the cabinets of Versailleis trent EuEo-

and Madrid, respecting the territory on the nor- n pow,.

them coast of the gulf of Mexico, were fierceand bloody; and continued, until the establishmentof a Bourbon on the throne of Spain, producedsuch amicable dispositions in the two crownsi asto suspend or terminate them.

Between France and Great Britain, whose dis-coveries as well as settlements were nearly con-temporaneous, contests for the country, actuallycovered by the Indians, began as soon as theirsettlements approached each other, and were con-tinued until finally settled in the year 1763, by thetreaty of Paris.

Each nation had granted and partially settledthe country, denominated by the French, Acadie,and by the English, Nova Scotia. By the 12tharticle of the treaty of Utrecht, made in 1703,his most Christian Majesty ceded to th6 Queen ofGreat Britain, " all Nova Scotia or Acadie, withits ancient boundaries." A great part of the cededterritory was in the possession of the Indians, ahdthe extent of the cession could not be adjusted bythe commissioners to whom it was to be referred.

The treaty of Aix la Chapelle, which was made

CASES IN THE: SUPREME COURT

1823. on the principle of the status ante bellum, did notSremove this subject of controversy. Commission-Jabnson

Y. ers for its adjustment were appointed, whose veryM'tos'. able and elaborate, though unsuccessful arguments,

in favour of the title of their respective sovereigns,show how entirely each relied on the title given bydiscovery to lands remaining in the possession ofIndians.

After the termination of this fruitless discussion,the subject was transferred to Europe, and takenup by the cabinets of Versailles and London.This controversy embraced 'not only the bounda-ries of New-England, Nova Scotia, and that partof Canada which adjoined those colonies, but em-braced our whole western country also. Francecontended not only that the St. Lawrence was tobe considered as the centre of Canada, but thatthe Ohio was vithin that colony. She foundedthis claim on discovery, and on-having used thatriver for the transportation of troops, in a warwith some southern Indians.

This river was comprehended in the charteredlimits of Virginia; but, though the right of Eng-land to a reasonable extent of country, in virtueof her discovery of the seacoast, and of the set-tlements 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 washedby the Atlantio, might, without derogating fromthe" principle recognised by all, be deemed extra-vagant. It interfered, too, with the claims ofFrance, founded on the same principle. Shetherefoie sought to strengthen her original title to


the lands in controversy, by insisting that it had 1823.been acknowledged by France in the 15th article .Tohnof the treaty of Utrecht. The dispute respecting 0.

the construction of that article, has no tendency M'Itoe.

to impair the principle, that discovery gave a titleto lands still remaining in the possession of theIndians. Whichever title prevailed, it was stilla title to lands occupied by the Indians, whoseright of occupancy neither controverted, and nei-ther had then extinguished.

These conflicting claims produced a long andbloody war, which was terminated by the conquestof the whole country east of the Mississippi. Inthe treaty of 1763, France ceded and guarantiedto Great Britain, all Nova Scotia, or Acadie, andCanada, with their dependencies; and it wasagreed, that the boundaries between the territoriesof the two nations, in America, should be irrevoca-bly fixed by a line drawn from the source of theMississippi, through the middle of that river andthe lakes Maurepas and Ponchartrain, to the sea.This treaty expressly cedes, and has always beenunderstood to cede, the whole country, on theEnglish side of the dividing line, between the twonations, although a great and -valuable part of itwas occupied by the Indians. Great Britain, onher part, surrendered to France all her preten-sions to the country west of the Mississippi. Ithas never been supposed that she surrenderednothing, although she was not in actual possessionof a foot of land. She surrendered all right toacquire the country; and any after attempt to pur-chase it from the Indians, would have been con-

5W


sidered and treated as an invasion of the territo-\ ries of France.Johnson

V. By the 20th article of the same treaty, SpainMvintosh. ceded Florida, with its dependencies, and all the

country she claimed east or southeast of the Mis-sissippi, to Great Britain. Great part of this ter-ritory also was in possession of the Indians.

By a secret treaty, which was executed aboutthe same time, France ceded Louisiana to Spain';and Spain has since retroceded the same couintryto France. At the time both of its cession andretrocession, it was occupied, chiefly, by the Ii-dians.

Adoption of Thus, all the nations of Europe, who have ac-the same prin-Uite Syth, quired territory on this continent, have asserted

in themselves, and have recognised in others, theexclusive right of the discoverer to appropriatethe lands occupied by the Indians. Have theAmerican States rejected or adopted this princi-ple?

By the treaty which concluded the war of ourrevolution, Great Britain relinquished all claim,not only to the government, but to the "proprietyand territorial rights of the United States," whoseboundaries were fixed in the second article. Bythistreaty, the powers of government, and the rightto soil, which had previously been in Great Bri-tain, passed definitively to these States. We hadbefore taken possession of them, by declaringindependence; but neither the declaration of in-dependence, nor the treaty confirming it, couldgive us more than that which we before possessed,or to which Great Britain was before entitled, It

I OF THE UNITED STATES.

has never been doubted, that either the United 1828.States, or the 'several States, had a clear title toall the lands within the boundary.lines described v.

in the treaty, subject only to the Indian right of oc-cupancy, and that the exclusive power to extin-guish that right, was vested in that governmentwhich might constitutionally exercise it.

'Virginia, particularly, within whose charteredlimits the land in controversy lay, passed an act,in the year 1779, declaring her " exclusive rightof pre-emption from the Indians, of all the landswithin the limits of her own chartered territory,and that no person or persons whatsoever, have,or ever had, a right to purchase any lands within thesame,'from any Indian nation, except only personsduly authorized to make such purchase; formerlyfor the use and benefit of the colony, and latelyfor the Commonwealth." The act then proceedsto annul all deeds made by Indians to individuals,for the private use of the purchasers.

Without ascribing to this act the power of an-nulling -vested rights, or admitting it to counter-vail the testimony furnished by the marginal noteopposite to the title of the law, forbidding purchasesfrom the Indians, in the revisals of the Virginiastatutes, stating that law to be repealed, it mqcysafely be considered as an unequivocal affirmance,on the part of Virginia, of the broad principlewhich had always been maintained, that the ex-clusive right to purchase from the Indians residedin the government.

In pursuance of the same idea, Virginia pro-ceeded, at the same session, to open her land

VOL. Wr1. 74


1823. office, for the sale of that country which now con-stitutes Kentucky, a country, every acte of which

V. was then claimed ad possessed by Indians, whomaintained their title with as much perseveringcourage as was ever manifested by any people.

The States, having within their chhrtered limitsdifferent portions of territory covered, by Indians,ceded tliai territory, generally, to thie UnitedStates, on conditions expressed in their deeds ofcession, which demonstrate the opinion, that theyceded the soil as well as jurisdiction, and that indoing so, they granted a productive fund to thegovernment of the Union. The lands in contro-versy lay within the chartered limits of Virginia,and were ceded with the whole country northwestof the river Ohio. This grant contained reserva-tions and stipulations, which could only be madeby the owners of the soil; and concluded with astipulation, that "all the lands in the ceded terri-tory, not reserved, should be considered as a com-mon fund, for the use and benefit of such of theUnited States as have become, or shall become,members of the confederation," &c. " accordingto their usual respective proportions in the generalcharge and expenditure, and shall be faithfullyand bona fide disposed of for that purpose, andfor no other use or purpose whatsoever."

The ceded territory was occupied by numerousand warlike tribes of Indians; but the exclusiveright of the United States to extinguish their title,and to grant the soil, has never, we believe, beendoubted.

OF THE UNITED STATES.%

After these States became independent, a con- 1823.troversy subsisted between them and Spain re-

Johnsomspecting boundary. By the treaty of 1795, this V.controversy was adjusted, and Spain ceded to the MIItoI

United States the territory in question. This ter-ritory, though claimed by both nations, was chieflyin the actual occupation of Indians.

The magnificent purchase of Louisiana, wasthe. purchase from France of a country almost en-tirely occupied by numerous tribes of Indians, whoare in fact independent. Yet, any attempt ofothers to intrude into that country, would be con-sidered as an aggression which would justify war.

Our late acquisitions from Spain are of thesame character; and the negotiations which pre-ceded those acquisitions, recognise and elucidatethe principle which has bein received as the foun-dation of all European title in America.

The United States, then, have unequivocallyacceded to that great and broad rule by which itscivilized inhabitants now hold this country. Theyhold, and assert in themselves, the title by which itwas acquired. They maintain, as all others havemaintained, that discovery gave an exclusive rightto extinguish the Indian title of occupancy, eitherby purchase or by conquest; and gave also aright to such a degree of sovereignty, as the cir-cumstances of the people would allow them toexercise. The ezlulvo

The power now possessed by the government riht of e~ritishg OVerno

of the United States to grant lands, resided, while ment to thelands occupied

we were colonies, in the crown, or its grantees. by olndian,,hae dThe validity of the titles given by either has never thto dth'*Unitedl Statey.

587


J823. been questioned in our Courts. It has been ex-ercised uniformly over territory in possession ofJ'on

v. the Indians. The existence of this power must'Ints. negative the existence of any right which may

conflict with, and control it. An absolute title tolands cannot exist, at the same time, in differentpersons, or in different governments. An absolute,must be an exclusive title, or at least a title whichexcludes all others not compatible with it. Allour institutions recognise the absolute title of thecrown, subject only to the Indian right of occu-pancy, and recognise the absolute title of theerown to extinguish that right. This is incom-patible with an absolute and complete title in theIndians.

aoundation We will not enter into the controversy, whetherand limitalion

of the tight of agriculturists, merchants, and manufacturers, havec~nqucst. 5• 'a right, on abstract principles, to expel hunters

from the territory they possess, or. to contract theirlimits. Conquest gives a title which the Courtsof the conqueror cannot deny, whatever the pri-vate and speculative opinions of individuals maybe, respecting the original justice of the claimwhich has been successfully asserted. The Bri-tish government, which was then our government,and whose rights have passed to the United States,aswerted a title to all the lands occupied by Indians,within the chartered limits of the British colonies.It asserted also a limited sovereignty over them,and the exclusive right of extinguishing the titlewhich occupancy gave to them. These claimshave been maintained and established as far westas the river Mississippi, by the sword. The title

588


to a vast portion of the lands we now hold, ori- 1823.ginates in them. It is not for the Courts of this John. ocountry to question the validity of this title, or to V.sustain one which is incompatible with it. ':z"'a,

Although we do not mean to engage in the de-fence of those principles which Europeans haveapplied to Indian title, they may, we think, findsome excuse, if not justification, in the characterand habits of the people whose rights have beenwrested from them.

The title by conquest is acquired and maintainedby force. The conqueror prescribes its limits.Humanity, however, acting on public opinion, hasestablished, as a general rule, that the conqueredshall not be wantonly oppressed, and that theircondition shall remain as eligible as is compatiblewith the objects of the conquest. Most usually,they are incorporated with the victorious nation,and become subjects or'citizens of the governmentwith which they are connected. The new andold members of the society mingle with eachother; the distinction between them is graduallylost, and they make one people. Where this in-corporation is practicable, humanity demands, anda wise policy requires, that the rights of the con-quered to property should remain unimpaired;that the new subjects should be governed as equi-tably as the old, and that confidence in their se-curity should gradually banish the painful sense ofbeing separated from their ancient connexions,and united by force to strangers.

When the conquest is complete, and the con-quered inhabitants can be blended with the con-

589


182. querors, or safely governed as a distinct people,rv' public opinion, which not even the conqueror canffdhisoV. disregard, imposes these restraints upon him; and

X'n~tosh. he cannot neglect them without injury to his famevApplication and hazard to his power.of the principle

of the right o But the tribes of. Indians inhabiting this cout-coqs to he ihbtncnqusttotht ry.were fierce savages, whose occupatior wascase of the la- refrc aiansvages. war, and whose subsistence was drawn chiefly

from the forest.' To leave them in .possession oftheir country, was to leave the country a wilder.ness; to. govern them as a distinct people, wasimpossible, because -they were ao brave and ashigh spirited as they were fierce, and were readyto repel by' arms every attempt,on their indepen-dence.

What was the inevitable consequence of thisstate of things? The Europeans were under thenecessity either of. abandoning the country, andrelinquishing their pompous claiml to it, or of en-forcing those claims by the sword, and by -theadoption of principles adapted to thQ conditioinof a people with whom it was impossible to mix,and who could not be governed as a distinct so-ciety, or of remaining in their neighbourhood, andexposing themselves and their families to the per-pjetual hazard of being massacred.

Frequent and bloody wars, in which the whiteswere not always the aggressors, unavoidablyensued. . European policy, numbers, and skill,prevailed. As the white population advanced,that of the Indians necessarily receded. Thecountry in the immediate neighbourhood of agri-culturists became unfit for them. The game fled


into thicker and more unbroken forests, and the 1823.Indians followed. The soil, to which the crown Johnson

originally claimed title, being no longer occupied V.by its ancient inhabitants, was parcelled out ac- M'intos.

cording to the will of the sovereign power, andtaken possession of by persons who claimed im-mediately from the crown, or mediately, throughits grantees or deputies.

That law which regulates, and ought to regulatein general, the relations between the conquerorand conquered, was incapable of application to apeople Under such circumstances. The resort tosome new and different rule, better adapted to theactual state of things, was unavoidable. Everyrule which can be suggested will be found to beattended with great difficulty.

However extravagant*the pretension of con- ratureoot,,Indian ttle s

verting the discovery of an inhabited country into !ubordinate totho nb, Aute

eonquest may appear; if the principle has been utimate titleasserted in the first instance, and afterwards sus- 'fte gove.-

tained; if a country has been. acquired and heldunder it; if the property of the great mass of thecommunity originates in it, it becomes the law ofthe laud, and cannot be questioned, So, too, withrespect to the concomitant principle, that the In-dian inhabitants are to be considered merely hs

occupants, to be protected, indeed, while in peace,in the possession of their lands, but to be deemedincapable of transferring the absolute title toothers. However this restriction may be opposedto natural right, and to the usages of civilized na-tions, yet, if'it -be indispefnsable to that systemunder which the country has been settled, and be

591


1823. adapted to the actual condition of the two people,it may, perhaps, be supported by reason, and cer-tainly cannot be rejected by Courts of justice.

,l' This question is not entirely new in this Court.The case of F/etcher v. Peck, grew out of a salemade by the State of Georgia of a large tract -ofcountry within the limits of that State, the grantof which was afterwards resumed. The actionwas brought by a sub-purchaser, on the contract ofsale, and one of -the covenants in the deed was,that the State of Georgia was, at the time of sale,seised in fee of the premises. The real questionpresented by the issue was, whether the seisin infee was in the State of Georgia, or in the UnitedStates. After stating, that. this controversy be-tween the several States and the United States,had been compromised, the Court thought it ne-cessary to notice the Indian title, which, althoughentitled tothe respect of all Courts until it shouldbe legitimately extinguished, was declared not tobe such as to be absolutely repugnant to a seisinin fee oo the part of the State.

This opinion conforms precisely to the princi-ple which has been supposed to be recognised byall European governments, from the first settle-ment of America. The absolute ultimate titlehas been considered as acquired by discovery, sub-ject only to the Indian title of occupancy, whichtitle the discoverers, possessed the exclusive rightofwacquiring. Such a right is no more incompati-ble with a seisin in fee, than a lease for years, andmight as effectually bar an ejectment.

Another view has been taken of this question,

-OF THE UNITED STA'[ES.

which dewerves to be considered. The title of the 1MScrown, whatever it might be, could be acquiredonly by a otkveyance from thecrown. If an in-dividual-might extinguish the Indian title for his oown benefit, or, in other words, might purchaseit, still he could acquire only that title. Admittingtheir power teochange their laws or usages, so faras to allow an individual to separate a portion oftheir lands from the common stock, and hold itin severalty, still it is a part of their territory, andis held under them, by a title dependent on theirhwa The grant derives its efficacy from theirwill; and, if they choose to resume it, and makea different disposition of the land, the Courts dfthe United States cannot interpose for the protec-tion of the title. The person who purchases landsfrom the Indians, within their territory, -incorpo-rates himself -with them, so far as respects the pro-perty purchased* holds their title under their pro-tection, and subject-to their laws. If they imnulthe graftt, we know of no tribunal which can re-vise and set aside the proceeding. We know ofno principle which can distinguish this case froma grant. made to a native Indian, authorizing himto hold a particular tract of land in severalty.

As such a grant could not separate the Indianfrom his nation, nor give a title which our Courtscould distinguish from the title of his tribe, as itmight still be conquered from, or ceded by histribe, we can perceive no legal principle whichwill authorize a Court to say, that different conse-quenees are attached to this purchase, because itwas made by a stranger. By the treaties con-

VOL. VIII 75

593

CASES IN -THE SUPREME COURT

182a. eluded, between the United States and the Indian\."v'. nations, whose title the plaintiffs claim, the coun-

V. try comprehending the lands in controversy has

,o been ceded to-the United States, without any re-servaOio" oftheir title. These nations had beenat.ware-with the United States, and had an unques-tionable right to alqnul any grant they had made-to American citizens. Their cession of the coun-t y,. without .reservatign of this land, affords afair presumption,..that they considered it as of no.validity,. -They..ceded to the United States thisvery property, after having used it in common withother lands, as. their own, from the date of their-deeds to the time of cession; and the attempt nowmade, is to set up their title against that of theUnited States.

Effect of the. The proclamation issued by the King of Greetproclamationof 1763. Britain, in 1763, has been considered, and, we think,

with reason, as constituting an additional objec-tion to the title of the plaintiffs.

By that proclamation, the crown reserved underits own dominion and protection, for the use of theIndians, " all the land and territories lying to thewestward of the, sources of the rivers which fallinto the sea from the west And northwest," andstrictly forbade all British subjects from makingany purchases or settlements whatever, or takingpossession of the reserved lands.

It has been contended, that, in this proclama-tion, the king transcended his constitutional pow-ers ; and the case of Campbell v. Hall, (reportedby Cowper,) is relied on to support this position.


It is supposed to be a principle of universal law, 182g.thdt, if an uninhabited country be discovered bya number of individuals, who aeknowledge no con-nexion with, and owe no allegiaeie to, any govern-merit whatever, the country becomes the propertyof the discoverers, so far at leasit a they cuu useit. They acquire a title- in common.- The titleof the whole land is in the wh.le society. It is.to'be divided and parcelled out aj cording to thewill of the society, expressed by the whole body,or by that organ vhich is aul.horized by the wholeto expregs it.

If the discovery be made, and pdssession of thecountry be taken, underthe authority of an exist-ing government, which is acknowledged by theemigrants, it is supposed to be equally well set-tled, that the discovery is- made for the -wholenation, --that the, country' becomes a part. of thenation; and that the vacant soil is to be disposedof by that organ of the government which has theconstitutional power to dispose of the nationaldomains, by that organ in which all vacant terri-tory is vested by law.

According to the theory of the British constitu-tion, A vacant lands are vested in the crown, asrepresenting the nation; and the lexclusive powerto grant them is admitted to reside in the crown,as a branch of the royal prerogative. It has beenalready shown, that this principle was as fully re-cognised in America as in the island of GreatBritain. All the lands we hold were originallygranted by the crown ; and the establishment of aregal government has never been considered as

595

CASES LN THE SUPREM1E COURT

1828. impairing its right to grant lands within the char-tered limits of such colony. In addition to theJohnson

M, V. proof of this principle, furnished by the immenseIntosh. grants, already mentioned, of lands lying within

the chartered limits of Virginia, the continuingright of the crown to grant lands lying within thatcolony was- always admitted. A title might beobtained, either by making an entry with the sur-vryor of a county, in pursuance of law, or by anorder of the governor in council, who was thedeputy of the king, or by an immediate grant fromthe crown. In Virginia, therefore, as well. aselsewhere in the British dominions, the completetitle of the crown to vacant lands was acknoi-ledged.

So far as respected the authority of the crown,no distinction was taken between vacant lands andlands occupied by the Indians. The title, subjectonly to the right of occupancy by the Indians, wasadmitted to be in the king, as was his right to grantthat title. The lands, then, to which this procla-mation referred, were lands which the king had aright to grant, or to reserve for the Indians.

According to the theory of the British consti-tution, the royal prerogative is very extensive, sofar as respects the :political relations betweenGreat Britain and foreign nations. The peculiarsituation of the Indians, necessarily considered,in some respects, as a dependent, and in somerespects as a distinct people, occupying a countryclaimed by Great Britain, and yet too powerfuland brave not to be dreaded as formidable ene-mies, required, that means should be adopted for


the preservation of peace; and that their friend- 1I2,ship should be secured by quieting their alarmsfor their property. This was to be effected by v.restraining the encroachments of the whites; and the power to do this was never, we believe, deniedby the colonies to the crown.

In the case of Camnpbell against Hal, thatpart of the proclamation was determined to beillegal, which imposed a tax on a conquered pro-vince, after a government had been bestowedupon it. The correctness of this decision cannotbe questioned, but its application to the case atbar cannot be admitted. Since the expulsion ofthe Stuart family, the power of imposing taxes,by proclamation, has never been claimed as abranch of regal prerogative ; but the powers ofgranting, or refusing to grant, vacant lands, andof restraining encroachments on the Indians, havealways been asserted and admitted.

The authority of this proclamation, so far as itrespected this continent, has never been denied,and the titles it gave to lands have always beensustained in our Courts.

In the argument of this cause, the counsel forthe plaintiffs have relied very much on the opinionsexpressed by men holding offices of trust, and onvarious proceedings in America, to sustain titlesto land derived-from the Indians.

The collection of claims to lands lying in thewestern country, made in the 1st volume of theLaws of the United States, has been referred to;but we find nothing in that collection to supportthe argument. Most of the titles were derived

W97.


1823. from persons professing to act undbr the authorityof the government existing at the time; and theJohnson-

V. two grants under which the plaintiffs claim, are'Ifntosh. supposed, by the person under whose inspection

the collection was made, t6 be void, because for-bidden by the royal proclamation of 1763. It isnot unworthy of remark, that the usual modeadopted by the Indians for granting lands to indi-viduals' has been to reserve them in a treaty, orto grant them under the sanction of the commis-sioners with whom the treaty was negotiated.The practice, in such case, to grant to the crown,for the use of the individual, is some evidence ofa general understanding, that the validity even ofsuch a grant depended on its, receiving the royalsanction.

Case of the The controversy between the colony of Con-Mlohegans. necticut and the Mohegan Indians, depended on

the nature and extent of a grant made by thoseIndians to the colony ; on the nature and extentof the reservations made by the Indians, in theirseveral deeds and treaties, which were alleged to.be recognised by the legitimate authority ; and onthe violation by the colony of rights thus reservedand secured. We do not perceive, in that case,any assertion of the principle, that individualsmight obtain a complete and valid title from theIndians.

Memorial of It has been~stated, that in the-memorial trans-mitted from the Cabinet of London to that ofVersailles, .during the controversy between thetwo nations, respecting boundary, which tookplace in 1755, the Indian right to the soil is recog-


nised. But this recognition was made with refer- 1823.ence to their character as Indians, and tbr the

J abhsozpurpose of showing that they were fixed to a par- V.

ticular territory. It was made for the purpose of MInt .sustaining the claim of his Britannic majesty todominion over them.

The opinion of the Attorney and Solicitor Ge-Opinionsofthey Attorm y " -

neral, Pratt and Yorke, have been adduced to ner.1-

prove, that, in the opinion of those great lawofficers, the Indian grant could convey a title to thesoil without a patent emanating from the crown.The opinion of those persons would certainly beof great authority on such a question, and wewere not a little surprised, when it was read, atthe doctrine it seemed to advance. An opinionso contrary to the whole practice of the crown,and to the uniform opinions given on all other oc-casions by its great law officers, ought to be veryexplicit, and accompanied by the circumstancesunder which it was given, and to which it was ap-plied, before we can be assured that it is properlyunderstood. In a pamphlet, written for the pur-pose of asserting the Indian title, styled "PlainFacts," the same opinion is quoted, and is said torelate to purchases made in the East Indies. Itis, of course, entirely inapplicable to purchasesmade in America. Chalmers, in whose collectionthis opinion is found, does not say to whom it ap-plies; but there is reason to believe, that the authorof Plain Facts is, in this respect, correct. Theopinion commences thus: "In respect to suchplaces as have been, or shall be acquired, by treaty,or gtant, from any of the Indian princes or go-

599


1823. vernments, your majesty's letters pWtent are notnecessary." The words " princes or govern-Johnson

V. ments," are usually applied to the East Indians,m'Intosh. but not to those of North America. We speak

of their sachems, their warriors, their chiefmen,their nations or tribes, not of their " princes orgovernments." The question on which the opi-nion was given, too, and to which it relates, was,whether the king's subjects carry with them thecommon law wherever they may form settlements.The opinion is given with a view to this point, andits object must be. kept in mind while construingits expressions.

Titlesnln n- Much reliance is also placed on the fact, thatder Indian many tracts are now held in the United Statesgrant under the Indian title, the validity of which is not

questioned.Before the importance attached to this fact is

conceded, the circumstances under which suchgrants were obtained, and such titles are sup-ported, ought to be considered. These lands liechiefly in the eastern States. It is known thatthe Plymouth Company made many extensivegrants, which, from their ignorance of the count-try, interfered with each other. It is also knownthat Mason, to whom New-Hampshire, and Gor-ges, to whom Maine was granted, found greatdifficulty in managing such unwieldy property.The country was settled by emigrants, some fromEurope, but chiefly from Massachusetts, whotook possession of lands they found unoccupied,and secured themselves in that possession by thebest means in their power. The disturbances in

OF- THE UNITED STATES.

England, and the civil war and revolution which 1825.followed those disturbances, prevented any inter-ference on the part of the mother country, and V.the proprietors were unable to maintain their title. DIrn0.

In the mean time, Massachusetts claimed thecountry, and governed it. As her claim was ad-versary to that of the proprietors, she encouragedthe settlement of persons made under her autho-rity, and encouraged, likewise, their securingthemselves in possession, by purchasing the ac-quiescence and forbearance of the Indians.

Aftek the restoration of Charles II., Gorgesand Mason, when they attempted to establishtheir title, found themselves opposed by men; whoheld under Massachusetts, and under the Indians.The title of the proprietors was resistel; andthough, in some cases, compromises were madeand in some, the opinion of a Court was givenultimately in their favour, the juries found uni-formly against them. They became wearied withthe struggle, and sold their property. -The titlesheld under the Indians, were sanctioned by lengthof possession; but there is no case, so faf as weare informed, of a judicial decision in their fa-vour.

Much reliance has also been placed on a recital chartercontained in the charter of Rhode-Island, and on

a letter addressed to the governors of the neigh-bouring colonies,'by the king's command, in whichsonme expressions are inserted, indicating th6 royalapprobaition of titles acquired from the Indians.

The charter to Rhode-Island recites, '(that thesaid John Clark, and others, had transplanted

VOL. VIUL 76


1823. themselves into.the midst of the Indian nations,and were seised and possessed, by purchase and,JTohnson

v. consent of the said natives, to their full content,,lM'nt6sh. of such lands," &c. And the letter recites, that

" Thomas Chifflineh, and others, having, in theright of Major Asperton, a just propriety in theNarraghanset country, in New-England, by grantsfrom the native princes of that country, and beingdesirous to improve it into an English colony,"&c. " are yet daily disturbed."

The impression this language might make, ifviewed apart from the circumstances under whichit was emplQyed, will be effaced, when consideredin connexion with those circumstances.

In the year 1635, the Plymouth Company sur-rendered their charter to the crown. About thesame time, the religious dissentions of Massachu-setts expelled from that colony several societies ofindividuals, one of which settled in Rhode-Island,on lands purchased from the Indians. Theywerenot within the chartered limits of Massachusetts,and the English government was too mu ch occu-pied at home to bestow its attention on this sub-ject. There existed no authority to arrest theirsettlement of the country. If they obtaIned theIndian title, there were none to assert the title ofthe crown. Under these circumstances, the set-tlement became considerable. Individuals ac-quired separate property in lands which theycultivated and improved; a government was esta-blished among themselves; and no power existed inAmerica which could rightfully interfere with it.

On the restoration of Charles II., this small so-

OF THE UNITED STATES. 6o0iciety hastened to acknowledge his authority, and 1823.to solicit his confirmation of their title to the soil, John

and to jurisdiction over the country. Their solici- V.tations were successful, and a charter was granted lI'Into+1b,to them, containing the recital which has beenmentioned.

It is obvious, that this transaction can amount-to no acknowledgment, that the Indian grant couldconvey a title paramount to that of the crown, orcould, in itself, constitute a complete title. Onthe contrary, the charter of the crown was con-sidered as indispensable to its completion.

It has never been contended, that the Indiantitle amounted to nothing. Their right of posses-sion has never been questioned. The claim ofgovernment extends to the complete ultimate title,charged with this right of possession, and to theexclusive power of acquiring that right. The objectof the crown was to settle the seacoast of Ame-rica; and when a portion of it was settled, withoutviolating the rights of others, by persons profess-ing their loyalty, and soliciting the royal sanctionof an act, the consequences of which were ascer-tained to be beneficial, it would have been asunwise as ungracious to expel them from theirhabitations, because they had obtained the Indiantitle otherwise than through the agency of go-vernment. The very grant of a charter is anassertion of the title of the crown, and its wordsconvey the same idea. The country granted, issaid to be " our island called Rhode-Island ;" andthe charter contains an actual grant of the soil,as well as of the powers of government.


1823. The letter was written a few months before the%charter was issued, apparently at the request of

V,. the agents of the intended colony, for the sole?4'Itosb. purpose of preventing the trespasses of neigh-

bours, who were disposed to claim some authorityover them. The king, being willing himselfriratify and confirm their title, was, of course, in-clined to. quiet them in their possession.

This charter, and this letter, certainly sanction4 previous unauthorized purchase from Indians,under the circumstances attending that particularpurchase, but are far from supporting the generalproposition, that a title acquired from the Indianswould be valid against a title acquired from thecrown, or without the confirmation of the crown.

The acts of the several colonial assemblies, pro-hibiting purchases from the Indians, have alsobeen relied on, as proving, that, independent ofsuch prohibitions, Indian deeds would be valid.But, we think this fact, at most, equivocal. Whilethe existence of such purchases would justifytheir prohibition, even by colonies which consideredIndis", deeds as previously invalid, the fact thatsuch acts have been generally passed, is strongevidence of the general opinion, that such pur-chases are opposed by the soundest principlesof wisdom and national policy.

After bestowing, on this subject a degree ofattention which was more required by the magni-tude of the interest in litigation, and the able andelaborate arguments of the bar, than by its intrin-sic difficulty, the Court is decidedly of opinion,that the plaintiffs do not exhibit a title which can

OF THE UNITED STATES. 65be sustained in the Courts of the United States; 182Mand that there is no error in the judgment which" oraclewas rendered against them in the District Court Xof Illinois. pa t.

Judgment affirmed, with costs.

ARCHIBALD GRACiE and others, Plaintiffsin Error,

V.

JoN PALMER and others, Defendants in Error.

By a -charter-party, the sum of 50,000 dollars was agreed to be paid

for the use or hire of the ship, on a voyage from Pbiladelphi4

to Madeira, and thence to Bombay, and at the option of the char-

terer to Calcutta, and back to Philadelphia, (with an addition of

2000 dollars, if she should proceed to Calcutta,) the whole payableon the return of the ship to Philadelphia, and before the dischargeof her cargo there, in approved notes, not exceeding an average

time of 90 days from the time at- which she should be ready to dis-

charge her cargo. The charterer proceeded in the ship to Cal-cutta, and, with the consent of the master, (who was appointed bythe ship-owners,) entered into an agreement with P. &, Co. mer-

chants there, that if they would make him an advance of money,

he would deliver to them a bill of lading stipulating for the deliveryof the goods purchased therewith to their agents in Philadelphia,

free of freight, who should be authorized to sell the same, and

apply the proceeds to the repayment of the said advance, unless

the charterer's bills, drawn on G. & S. of Philadelphia, should beaccepted, in which event the agents of P. 8t Co. should deliver the

goods to the charterer. The goods were shipped accordingly, and

a bill of lading signed by the master, with the clause, " freight for

the said goods having been settled here." The bills of exchange

drawn by the charterer were refused acceptance, and the agents ofP. & Co. demanded the goods, which the owners of the ship refusedto deliver without the payment of freight: Hed, that the owners of

the ship had a lien on these goods for the freight.

JOHNSON GRAHAM'S Lessee WILLIAM M'INTOSH. · and Company of Adventurers and Planters of the City of...

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