The Earth, as we have already observed, belongs to mankind in general, and was designed to furnish them with subsistence. If each Nation had from the beginning resolved to appropriate to itself a vast country, that the people might live only by hunting, fishing, and wild fruits, our Globe would not be sufficient to maintain a tenth part of its present inhabitants. We do not therefore deviate from the views of Nature in confining the Indians within narrow limits." Vattel has elsewhere observed, "Those who still pursue this idle mode of life, (namely, who to avoid labour choose to live by hunting and by their flocks,) usurp more extensive territory than with a reasonable share of labour they would have occasion for, and have therefore no reason to complain if other Nations, more industrious and more closely confined, come and take possession of part of those lands. Thus, though the conquest of the civilised empires of Peru and Mexico was a notorious usurpation, the establishment of many Colonies on the Continent of North America, might, on their confining themselves within just bounds, be extremely lawful. The people of those extensive tracts rather ranged through than inhabited them 40 "

the New

§ 126. "On the discovery of this immense Continent," Settleto quote the words of Chief Justice Marshall", "the ments in great Nations of Europe were eager to appropriate to World. themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior Genius of Europe might claim an ascendency. The

39 Droit des Gens, L. I. § 209. 40 Ibid. § 81.

41 Johnson V. McIntosh. 8 Wheaton, p. 573

Potentates of the Old World found no difficulty in convincing themselves that they made ample compenpensation to the inhabitants of the New World, by bestowing on them Civilisation and Christianity in exchange for Independence. But as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the Right of Acquisition, which they all asserted, should be regulated as between themselves. This principle was, that Discovery gave title to the Government, by whose subjects or by whose authority it was made, against all other European Governments, which title might be consummated by possession. The exclusion of all other Europeans necessarily gave to the Nation, making the discovery, the sole right of acquiring the soil from the Natives and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which by others all assented. Those relations, which were to exist between the Discoverer and the Natives, were to be regulated by themselves. The Right thus acquired being exclusive, no other Power could interfere between them."

"In the establishment of these relations, the Rights of the original Inhabitants were in no instance entirely disregarded, but were necessarily, 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 possession of it, and to use it according to their own discretion; but their Rights to complete Sovereignty, as Independent Nations, were necessarily diminished, and their power to dispose of

the soil at their own will to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it. While the different nations of Europe respected the Right of the Natives, as occupants, they asserted the ultimate dominion to be in themselves; and obtained and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in the possession of the Natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian Right of Occupancy."

Right of

European Na- Native

§ 127. The United States have consequently ad- Possessory hered to the customary rule amongst tions with regard to Territorial Title. "The title of Indians. the European Nations," says Chancellor Kent", " and which passed to the United States, to this immense Territorial Empire was founded on Discovery and Conquest; and by the European customary Law of Nations, prior discovery gave this title to the soil, subject to the Possessory Right of the Natives, and which occupancy was all the Right which European conquerors and discoverers, and which the United States, as succeeding to their title, would admit to reside in the native Indians. The principle is, that the Indians are to be considered merely as occupants, to be protected while in peace in the possession of their lands; but to be incapable of transferring the absolute title to any other than the Sovereign of the country, who has an exclusive right to extinguish the Indian title of occupancy either by purchase or by conquest."

ture in

128. The question whether agriculturists and Agricul manufacturers have a right on abstract principles relation to to expel shepherds from their pasture-grounds, or pasture. 4 Commentaries on American Law, B. I. p. 258.

The Indian
Title.

hunters from the territory over which they range
in pursuit of game, or to contract the limits within.
which they shall exercise their avocations, has thus
been discussed by Vattel: "Families which wander
in a country, as pastoral people, and which range
through it as their wants require, possess it in com-
mon. It belongs to them, to the exclusion of all
other Nations, and we cannot without injustice de-
prive them of the tracts of country of which they
make use.
But let us here recollect what we have
said more than once44. The Savages of America
had no right to appropriate all that vast Continent
to themselves, and since they were unable to inhabit
the whole of those regions, other Nations might,
without injustice, settle in some parts of them, pro-
vided they left the Natives a sufficiency of land. If
the pastoral Arabs would carefully cultivate the soil,
a less space might be sufficient for them. Never-

theless no other Nation has a right to narrow their
boundaries, unless it be under an absolute want of
land. For in fact they possess their country; they
make use of it after their manner; they reap from it
an advantage suitable to their mode of life, respecting
which they have no laws to receive from any one.
In a case of pressing necessity, I think, people might
without injustice settle in a part of that country, on
teaching the Arabs the means of rendering it, by the
cultivation of the Earth, sufficient for their own wants
and those of the new inhabitants."

$ 129. This question has been treated with great lucidity and moderation in a judgment of Chief Justice Marshall 45; "Although we do not mean to engage

43 L. II. § 97.

44 L. I. § 81. and § 209. L. II. $ 86.

45 Johnson and Graham's lessee against McIntosh. 8 Wheaton, p. 589.

in the defence of those principles which Europeans have applied to Indian Title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them.

"The Title by Conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. Most usually, they are incorporated with the victorious Nation, and become subjects or citizens of the government with which they are connected. The new and old members of the Society mingle with each other; the distinction between them is gradually lost, and they make one People. Where this incorporation is practicable, humanity demands, and a wise policy requires, that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connexions, and united by force to strangers.

"When the conquest is complete, and the conquered inhabitants can be blended with the conquerors, or safely governed as a distinct people, public opinion, which not even the conqueror can disregard, imposes these restraints upon him; and he cannot neglect them without injury to his fame, and hazard to his power.

"But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest.