To leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people was impossible, because they were as brave and high spirited as they were fierce, and were ready to repel by arms every attempt on their Independence.

"What was the inevitable consequence of this state of things? The Europeans were under the necessity either of abandoning the country, and relinquishing their pompous claims to it, or of enforcing those claims by the sword; and by the adoption of principles adapted to the condition of a people with whom it was impossible to mix, and who could not be governed as a distinct Society; or of remaining in their neighbourhood, and exposing themselves and their families to the perpetual hazard of being massacred.

66

Frequent and bloody wars in which the Whites were not always the aggressors, unavoidably ensued. European policy, numbers, and skill, prevailed. As the white population advanced, that of the Indians necessarily receded. The country in the immediate neighbourhood of agriculturists became unfit for them. The game fled into thicker and more unbroken forests, and the Indians followed. The soil to which the Crown originally claimed title, being no longer occupied by its ancient inhabitants, was parcelled out according to the will of the Sovereign Power, and taken possession of by persons who claimed immediately from the Crown, or mediately, through its grantees or deputies.

"That Law which regulates, and ought to regulate in general, the relations between the conqueror and conquered, was incapable of application to a people under such circumstances. The resort to some new

and different rule, better adapted to the actual state of things, was unavoidable. Every rule which can be suggested will be found to be attended with great difficulty.

"However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the Law of the Land, and cannot be questioned. So too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to Natural Right, and to the usages of Civilised Nations, yet if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by Reason, and certainly cannot be rejected by Courts of Justice."

tion.

130. Derivative Acquisition as distinguished from Derivative Original Acquisition results from Indirect or Direct AcquisiCession. Indirect Cession takes place, when a Nation vanquished in war abandons a territory, and the Nation which has overrun it remains in possession of it. Direct Cession, on the other hand, is announced by some Act of a declaratory nature, whereby a Nation explicitly devolves its territorial rights to another Nation. The object of Direct Cession is sometimes to prevent a war, but most frequently to cement a peace. The repeated occurrence of such Direct Cessions in later times has led Jurists to make a distinc

tion accordingly between Acts which place on record such Cessions, and Treaties properly so called. "The compacts," writes Vattel," "which have temporary matters for their object are called agreements, conventions, and pactions. They are accomplished by one single Act and not by repeated Acts. The compacts are perfected in their execution once for all; treaties receive a successive execution whose duration equals that of the treaty." Martens," to the same purport writes, "On divise ensuite en général les traités en conventions transitoires, qui s'accomplissent d'un seul coup, et en traités proprement dits, qui obligent à des prestations successives, quoique dans la pratique on ne suive pas toujours cette distinction dans le choix des termes dont on désigne les arrangemens faits entre les nations. Les traités de cession, de limites, d'échange et ceux même qui constituent une servitude de droit public, ont la nature des conventions transitoires; les traités d'amitié, de commerce, de navigation, les alliances égales et inégales, ont celle des traités proprement dits (foedera). Les conventions transitoires sont perpetuelles par la nature des choses, de sorte qu'une fois accomplies, elles subsistent indépendamment des changemens survenus dans la personne du monarque, dans la forme du gouvernement, et même dans la Souverainté de l'êtat contractant, tant qu'elles n'ont pas été mutuellement revoquées; une guerre même, survenue pour un autre motif, ne les fait pas tomber d'elles mêmes, quoiqu'elle autorise à en suspendre l'effet et quelquefois à les revoquer." To the same effect, Mr. Wheaton says, "General Compacts between Nations may be divided into what are called transitory conventions and treaties properly so called.

46 L. II. § 163.

47 Précis de Droit des Gens, § 58. 48 Elements of International Law, Part II. c. 4. § 9.

The first are perpetual in their nature, so that, being once carried into effect, they subsist independent of any change in the Sovereignty and form of Government of the Contracting Parties, and although their operation may in some cases be suspended during war, they revive on the return of peace without any express stipulation. Such are treaties of cession, boundary, or exchange of territory, or those which create a permanent servitude in favour of one Nation within the territory of another."

Cession.

$131. In the case of Indirect Cession, which takes Title by place by abandonment to an invading enemy, a confirmation of it is for the most part supplied by a subsequent treaty of peace concluded on the basis of “ uti possidetis," whereby it is agreed that either Nation shall remain in possession of the territory which it has acquired during the war. But such Indirect Cession, although it remains incomplete during the war, seeing that there may be a change at any moment in the fortune of arms, does not require any such explicit confirmation in order to make it complete. If peace be concluded, without any stipulation for the restoration of territory on either side, the Nation which has wrested during the war a town or a province from another Nation, acquires a lawful title to it by the conclusion of a treaty of peace with that Nation. The conclusion of the treaty of peace without reference to any restitutions is a tacit consent on the part of the Nation, from which a town or province has been wrested, that it should permanently remain in the hands of the conqueror; seeing that the worsted nation undertakes by concluding peace not to have recourse to force of arms for the recovery of its former possessions. The effect of a treaty of

peace," writes Vattel," "is to put an end to the war, and to abolish the subject of it. It leaves the Contracting Parties no right to commit any acts of hostility, on account either of the subject itself which had given rise to the war, or of anything that was done during its continuance; wherefore they cannot lawfully take up arms again for the same purpose." Title by Conquest thus resolves itself juridically into Title by Cession, and it is not the superior power of the conqueror which gives right to his conquest, but it is the consent of the conquered, which ultimately sanctions the conqueror's right of possession.

49 Lib. IV. c. 2. § 19. Grotius de Jure B. et P. L. III. c. 9. § 4. and c. 20. § 10.