Johnson v. M'Intosh
ERROR to the District Court of Illinois. This was an action of ejectment for lands in the State and District of Illinois, claimed by the plaintiffs under a purchase and conveyance from the Piankeshaw Indians, and by the defendant, under a grant from the United States. It came up on a case stated, upon which there was a judgment below for the defendant. The case stated set out the following facts:
1st. That on the 23d of May, 1609, James I. king of England, by his letters patent of that date, under the great seal of England, did erect, form, and establish Robert, Earl of Salisbury, and others, his associates, in the letters patent named, and their successors, into a body corporate and politic, by the name and style of 'The Treasurer and Company of Adventurers and Planters of the City of London, for the first Colony in Virginia,' with perpetual succession, and power to make, have, and use a common seal; and did give, grant, and confirm unto this company, and their successors, under certain reservations and limitations in the letters patent expressed, 'All the lands, countries, and territories, situate, lying, and being in that part of North America called Virginia, from the point of land called Cape or Point Comfort, all along the seacoast to the northward two hundred miles; and from the said Cape or Point Comfort, all along the seacoast to the southward, two hundred miles; and all that space and circuit of land lying from the seacoast of the precinct aforesaid, up into the land throughout from the sea, west and northwest; and also all the islands lying within one hundred miles, along the coast of both seas of the precinct aforesaid; with all the soil, grounds, rights, privileges, and appurtenances to these territories belonging, and in the letters patent particularly enumerated:' and did grant to this corporation, and their successors, various powers of government, in the letters patent particularly expressed.
2d. That the place, called in these letters patent, Cape or Point Comfort, is the place now called and known by the name of Old Point Comfort, on the Chesapeake Bay and Hampton Roads; and that immediately after the granting of the letters patent, the corporation proceeded, under and by virtue of them, to take possession of parts of the territory which they describe, and to form settlements, plant a colony, and exercise the powers of government therein; which colony was called and known by the name of the colony of Virginia.
3d. That at the time of granting these letters patent, and of the discovery of the continent of North America by the Europeans, and during the whole intermediate time, the whole of the territory, in the letters patent described, except a small district on James River, where a settlement of Europeans had previously been made, was held, occupied, and possessed, in full sovereignty, by various independent tribes or nations of Indians, who were the sovereigns of their respective portions of the territory, and the absolute owners and proprietors of the soil; and who neither acknowledged nor owed any allegiance or obedience to any European sovereign or state whatever: and that in making settlements within this territory, and in all the other parts of North America, where settlements were made, under the authority of the English government, or by its subjects, the right of soil was previously obtained by purchase or conquest, from the particular Indian tribe or nation by which the soil was claimed and held; or the consent of such tribe or nation was secured.
4th. That in the year 1624, this corporation was dissolved by due course of law, and all its powers, together with its rights of soil and jurisdiction, under the letters patent in question, were revested in the crown of England; whereupon the colony became a royal government, with the same territorial limits and extent which had been established by the letters patent, and so continued until it became a free and independent State; except so far as its limits and extent were altered and curtailed by the treaty of February 10th, 1763, between Great Britain and France, and by the letters patent granted by the King of England, for establishing the colonies of Carolina, Maryland, and Pennsylvania.
5th. That some time previous to the year 1756, the French government, laying a claim to the country west of the Alleghany or Appalachian mountains, on the Ohio and Mississippi rivers, and their branches, took possession of certain parts of it, with the consent of the several tribes or nations of Indians possessing and owning them; and, with the like consent, established several military posts and settlements therein, particularly at Kaskaskias, on the river Kaskaskias, and at Vincennes, on the river Wabash, within the limits of the colony of Virginia, as described and established in and by the letters patent of May 23d, 1609: and that the government of Great Britain, after complaining of these establishments as encroachments, and remonstrating against them, at length, in the year 1756, took up arms to resist and repel them; which produced a war between those two nations, wherein the Indian tribes inhabiting and holding the countries northwest of the Ohio, and on the Mississippi above the mouth of the Ohio, were the allies of France, and the Indians known by the name of the Six Nations, or the Iroquois, and their tributaries and allies, were the allies of Great Britain; and that on the 10th of February, 1763, this war was terminated by a definitive treaty of peace between Great Britain and France, and their allies, by which it was stipulated and agreed, that the river Mississippi, from its source to the Iberville, should for ever after form the boundary between the dominions of Great Britain and those of France, in that part of North America, and between their respective allies there.
6th. That the government of Virginia, at and before the commencement of this war, and at all times after it became a royal government, claimed and exercised jurisdiction, with the knowledge and assent of the government of Great Britain, in and over the country northwest of the river Ohio, and east of the Mississippi, as being included within the bounds and limits described and established for that colony, by the letters patent of May 23d, 1609; and that in the year 1749, a grant of six hundred thousand acres of land, within the country northwest of the Ohio, and as part of Virginia, was made by the government of Great Britain to some of its subjects, by the name and style of the Ohio Company.
7th. That at and before the commencement of the 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 the country north and northwest of the Ohio, and east of the Mississippi, as far east as the river falling into the Ohio called the Great Miami, were called and known by the name of the Western Confederacy of Indians, and were the allies of France in the war, but not her subjects, never having been in any manner conquered by her, and held the country in absolute sovereignty, as independent nations, both as to the right of jurisdiction and sovereignty, and the right of soil, except a few military posts, and a small territory around each, which they had ceded to France, and she held under them, and among which were the aforesaid posts of Kaskaskias and Vincennes; and that these Indians, after the treaty, became the allies of Great Britain, living under her protection as they had before lived under that of France, but were free and independent, owing no allegiance to any foreign power whatever, and holding their lands in absolute property; the territories of the respective tribes being separated from each other, and distinguished by certain natural marks and boundaries to the Indians well known; and each tribe claiming and exercising separate and absolute ownership, in and over its own territory, both as to the right of sovereignty and jurisdiction, and the right of soil.
8th. That among the tribes of Indians, thus holding and inhabiting the territory north and northwest of the Ohio, east of the Mississippi, and west of the Great Miami, within the limits of Virginia, as described in the letters patent of May 23d, 1609, were certain independent tribes or nations, called the Illinois or Kaskaskias, and the Piankeshaw or Wabash Indians; the first of which consisted of three several tribes united into one, and called the Kaskasias, the Pewarias, and the Cahoquias; that the Illinois owned, held, and inhabited, as their absolute and separate property, a large tract of country within the last mentioned limits, and situated on the Mississippi, Illinois, and Kaskaskias rivers, and on the Ohio below the mouth of the Wabash; and the Piankeshaws, another large tract of country within the same limits, and as their absolute and separate property, on the Wabash and Ohio rivers; and that these Indians remained in the sole and absolute ownership and possession of the country in question, until the sales made by them, in the manner herein after set forth.
9th. That on the termination of the war between Great Britain and France, the Illinois Indians, by the name of the Kaskaskias tribes of Indians, as fully representing all the Illinois tribes then remaining, made a treaty of peace with Great Britain, and a treaty of peace, limits, and amity, under her mediation, with the Six Nations, or Iroquois, and their allies, then known and distinguished by the name of the Northern Confederacy of Indians; the Illinois being a part of the confederacy then known and distinguished by the name of the Southern Confederacy, and sometimes by that of the Western Confederacy.
10th. That on the 7th of October, 1763, the King of Great Britain made and published a proclamation, for the better regulation of the countries ceded to Great Britain by that treaty, which proclamation is referred to, and made part of the case.
11th. That from time immemorial, and always up to the present time, all the Indian tribes, or nations of North America, and especially the Illinois and Piankeshaws, and other tribes holding, possessing, and inhabiting the said countries north and northeast of the Ohio, east of the Mississippi, and west of the Great Miami, held their respective lands and territories each in common, the individuals of each tribe or nation holding the lands and territories of such tribe in common with each other, and there being among them no separate property in the soil; and that their sole method of selling, granting, and conveying their lands, whether to governments or individuals, always has been, from time immemorial, and now is, for certain chiefs of the tribe selling, to represent the whole tribe in every part of the transaction; to make the contract, and execute the deed, on behalf of the whole tribe; to receive for it the consideration, whether in money or commodities, or both; and, finally, to divide such consideration among the individuals of the tribe: and that the authority of the chiefs, so acting for the whole tribe, is attested by the presence and assent of the individuals composing the tribe, or some of them, and by the receipt by the individuals composing the tribe, of their respective shares of the price, and in no other manner.
12th. That on the 5th of July, 1773, certain chiefs of the Illinois Indians, then jointly reprepresenting, acting for, and being duly authorized by 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 Kaskaskias, then being a British military post, and at a public council there held by them, for and on behalf of the said Illinois nation of Indians, with William Murray, of the Illinois country, merchant, acting for himself and for Moses Franks and Jacob Franks, of London, in Great Britain, David Franks, John Inglis, Bernard Gratz, Michael Gratz, Alexander Ross, David Sproat, and James Milligan, all of Philadelphia, in the province of Pennsylvania; Moses Franks, Andrew Hamilton, William Hamilton, and Edmund Milne, of the same place; Joseph Simons, otherwise called Joseph Simon, and Levi Andrew Levi of the town of Lancaster in Pennsylvania; Thomas Minshall of York county, in the same province; Robert Callender and William Thompson, of Cumberland county, in the same province; John Campbell of Pittsburgh, in the same province; and George Castles and James Ramsay of the Illinois country; and for a good and valuable consideration in the said deed stated, grant, bargain, sell, alien, lease, enfeoff, and confirm, to the said William Murray, Moses Franks, Jacob Franks, David Franks, John Inglis, Bernard Gratz, Michael Gratz, Alexander Ross, David Sproat, James Milligan, Andrew Hamilton, William Hamilton, Edmund Milne, Joseph Simons, otherwise called Joseph Simon, Levi Andrew Levi, Thomas Minshall, Robert Callender, William Thompson, John Campbell, George Castles, and James Ramsay, their heirs and assigns for ever, in severalty, or to George the Third, then King of Great Britain and Ireland, his heirs and successors, for the use, benefit, and behoof of the grantees, their heirs and assigns, in severalty, by whichever of those tenures they might most legally hold, all those two several tracts or parcels of land, situated, lying, and being within the limits of Virginia, on the east of the Mississippi, northwest of the Ohio, and west of the Great Miami, and thus butted and bounded: Beginning for one of the said tracts on the east side of the Mississippi, at the mouth of the Heron creek, called by the French the river of Mary, being about a league below the mouth of the Kaskaskias river, and running thence a northward of east course, in a direct line, back to the Hilly Plains, about eight leagues more or less; thence the same course, in a direct line to the Crab Tree Plains, about seventeen leagues more or less; thence the same course, in a direct line, to a remarkable place known by the name of the Big Buffalo Hoofs, about seventeen leagues more or less; thence the same course, in a direct line to the Salt Lick creek, about seven leagues more or less; then crossing the Salt Lick creek, about one league below the ancient Shawanese town, in an easterly, or a little to the north of east, course, in a direct line to the river Ohio, about four leagues more or less; then down the Ohio, by its several courses, until it empties into the Mississippi, about thirty-five leagues more or less; and then up the Mississippi, by its several courses, to the place of beginning, about thirty-three leagues more or less: And beginning for the other tract on the Mississippi, at a point directly opposite to the mouth of the Missouri, and running up the Mississippi, by its several courses, to the mouth of the Illinois, about six leagues more or less; and thence up the Illinois, by its several courses, to Chicagou or Garlic creek, about ninety leagues, more or less; thence nearly a northerly course, in a direct line, to a certain remarkable place, being the ground on which a battle was fought, about forty or fifty years before that time, between the Pewaria and Renard Indians, about fifty leagues more or less; thence by the same course, in a direct line, to two remarkable 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 direct line, to a remarkable spring, known by the Indians by the name of 'Foggy Spring,' about fourteen leagues more or less; thence the same course, in a direct line to a great mountain, to the northwest of the White Buffalo Plain, about fifteen leagues more or less; and thence nearly a southwest course to the place of beginning, about forty leagues more or less: To have and to hold the said two tracts of land, with all and singular their appurtenances, to the grantees, their heirs and assigns, for ever, in severalty, or to the king, his heirs and successors, to and for the use, benefit, or behoof of the grantees, their heirs and assigns, for ever, in severalty: as will more fully appear by the said deed poll, duly executed under the hands and seals of the grantors, and duly recorded at 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 endorsed on it, was set out at length in the case.
13th. That the consideration in this deed expressed, was of the value of 24,000 dollars, current money of the United States, and upwards, and was paid and delivered, at the time of the execution of the deed, by William Murray, one of the grantees, in behalf of himself and the other grantees, to the Illinois Indians, who freely accepted it, and divided it among themselves: that the conferences in which the sale of these lands was agreed on and made, and in which it was agreed that the deed should be executed, were publicly held, for the space of a month, at the post of Kaskaskias, and were attended by many individuals of all the tribes of Illinois Indians, besides the chiefs, named as grantors in the deed; that the whole transaction was open, public, and fair, and the deed fully explained to the grantors and other Indians, by the sworn interpreters of the government, and fully understood by the grantors and other Indians, before it was executed; that the several witnesses to the deed, and the grantees named in it, were such persons, and of such quality and stations, respectively, as they are described to be in the deed, the attestation, and the other endorsements on it; that the grantees did duly authorize William Murray to act for and represent them, in the purchase of the lands, and the acceptance of the deed; and that the two tracts or parcels of land which it describes, and purports to grant, were then part of the lands held, possessed, and inhabited by the Illinois Indians, from time immemorial, in the manner already stated.
14th. That all the persons named as grantees in this deed, were, at the time of its execution, and long before, subjects of the crown of Great Britain, and residents of the several places named in the deed as their places of residence; and that they entered into the land, under and by virtue of the deed, and became seised as the law requires.
15th. That on the 18th of October, 1775, Tabac, and certain other Indians, all being chiefs of the Piankeshaws, and jointly representing, acting for, and duly authorized by that nation, in the manner stated above, did, by their deed poll, duly executed, and bearing date on the day last mentioned, at the post of Vincennes, otherwise called post St. Vincent, then being a British military post, and at a public council there held by them, for and on behalf of the Piankeshaw Indians, with Louis Viviat, of the Illinois country, acting for himself, and for the Right Honourable John, Earl of Dunmore, then governor of Virginia, the Honourable John Murray, son of the said Earl, Moses Franks and Jacob Franks, of London, in Great Britain, Thomas Johnson, jr. and John Davidson, both of Annapolis, in Maryland, William Russel, Matthew Ridley, Robert Christie, sen. and Robert Christie, jr., of Baltimore town, in the same province, Peter Compbell, of Piscataway, in the same province, William Geddes, of Newtown Chester, in the same province, collector of his majesty's customs, David Franks and Moses Franks, both of Philadelphia, in Pennsylvania, William Murray and Daniel Murray, of the Illinois country, Nicholas St. Martin and Joseph Page, of the same place, Francis Perthuis, late of Quebec, in Canada, but then of post St. Vincent, and for good and valuable consideration, in the deed poll mentioned and enumerated, grant, bargain, sell, alien, enfeoff, release, ratify, and confirm to the said Louis Viviat, and the other persons last mentioned, their heirs and assigns, equally to be divided, or to George III. then king of Great Britain and Ireland, his heirs and successors, for the use, benefit, and behoof of all the above mentioned grantees, their heirs and assigns, in severalty, by which ever of those tenures they might most legally hold, all those two several tracts of land, in the deed particularly described, situate, lying, and being northwest of the Ohio, east of the Mississippi, and west of the Great Miami, within the limits of Virginia, and on both sides of the Ouabache, otherwise called the Wabash; which two tracts of land are contained respectively within the following metes and bounds, courses and distances, that is to say: beginning for one of the said tracts at the mouth of a rivulet called Riviere du Chat, or Cat river, where it empties itself into the Ouabache or Wabash, by its several courses, to a place called Point Coupee, about twelve leagues above post St. Vincent, being forty leagues, or thereabouts, in length, on the said river Ouabache, from the place of beginning, with forty leagues in width or breadth on the east side, and thirty leagues in breadth or width on the west side of that river, to be continued along from the place of beginning to Point Coupee. And beginning for the other tract at the mouth of White river, where it empties into the Ouabache, about twelve leagues below post St. Vincent, and running thence down the Ouabache, by its several courses, until it empties into the Ohio; being from White river to the Ohio, about fifty-three leagues in length, more or less, with forty leagues in width or breadth on the east side, and thirty in width or breadth on the west side of the Ouabache, to be continued along from the White river to the Ohio; with all the rights, liberties, privileges, hereditaments, and appurtenances, to the said tract belonging; to have and to hold to the grantees, their heirs and assigns, for ever, in severalty, 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 appear by the deed itself, duly executed under the hands and seals of the grantors, and duly recorded at Kaskaskias, on the 5th of December, 1775, in the office of Louis Bomer, a notary public, duly appointed and authorized. This deed, with the several certificates annexed to or endorsed on it, was set out at length.
16th. That the consideration in this deed expressed, was of the value of 31,000 dollars, current money of the United States, and upwards, and was paid and delivered at the time of the execution of the deed, by the grantee, Lewis Viviat, in behalf of himself and the other grantees, to the Piankeshaw Indians, who freely accepted it, and divided it among themselves; that the conferences in which the sale of these two tracts of land was agreed on and made, and in which it was agreed, that the deed should be executed, 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 the Piankeshaw nation of Indians, besides the chiefs named as grantors in the deed; that the whole transaction was open, public, and fair, and the deed fully explained to the grantors and other Indians, by skilful interpreters, and fully understood by them before it was executed; that it was executed in the presence of the several witnesses by whom it purports to have been attested, and was attested by them; that the grantees were all subjects of the crown of Great Britain, and were of such quality, station, and residence, respectively, as they are described in the deed to be; that the grantees did duly authorize Lewis Viviat to act for, and represent them, in the purchase of these two tracts of land, and in the acceptance of the deed; that these tracts of land were then part of the lands held, possessed, and inhabited by the Piankeshaw Indians, from time immemorial, as is stated above; and that the several grantees under this deed entered into the land which it purports to grant, and became seized as the law requires.
17th. That on the 6th of May, 1776, the colony of Virginia threw off its dependence on the crown and government of Great Britain, and declared itself an independent State and government, with the limits prescribed and established by the letters patent of May 23d, 1609, as curtailed and restricted by the letters patent establishing the colonies of Pennsylvania, Maryland, and Carolina, and by the treaty of February 10th, 1763, between Great Britain and France; which limits, so curtailed and restricted, the State of Virginia, by its constitution and form of government, declared should be and remain the limits of the State, and should bound its western and northwestern extent.
18th. That on the 5th of October, 1778, the General Assembly of Virginia, having taken by arms the posts of Kaskaskias and Vincennes, or St. Vincent, from the British forces, by whom they were then held, and driven those forces from the country northwest of the Ohio, east of the Mississippi, and west of the Great Miami, did, by an act of Assembly of that date, entitled, 'An act for establishing the county of Illinois, and for the more effectual protection and defence thereof,' erect that country, with certain other portions of territory within the limits of the State, and northwest of the Ohio, into a county, by the name of the county of Illinois.
19th. That on the 20th of December, 1783, the State of Virginia, by an act of Assembly of that date, authorized their Delegates in the Congress of the United States, or such of them, to the number of three at least, as should be assembled in Congress, on behalf of the State, and by proper deeds or instruments in writing under their hands and seals, to convey, transfer, assign, and make over 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, which Virginia had to the territory or tract of country within her limits, as defined and prescribed by the letters patent of May 23d, 1609, and lying to the northwest of the Ohio; subject to certain limitations and conditions in the act prescribed and specified; and that on the 1st of March, 1784, Thomas Jefferson, Samuel Hardy, Arthur Lee, and James Monroe, then being four of the Delegates of Virginia to the Congress of the United States, did, by their deed poll, under their hands and seals, in pursuance and execution of the authority to them given by this act of Assembly, convey, transfer, assign, and make over 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, which that State had to the territory northwest of the Ohio, with the reservations, limitations, and conditions, in the act of Assembly prescribed; which cession the United States accepted.
20th. That on the twentieth day of July, in the year of our Lord one thousand eight hundred and eighteen, the United States, by their officers duly authorized for that purpose, did sell, grant, and convey to the defendant in this action, William M'Intosh, all those several tracts or parcels of land, containing 11,560 acres, and butted, bounded, and described, as will fully appear in and by the patent for the said lands, duly executed, which was set out at length.
21st. That the lands described and granted in and by this patent, are situated within the State of Illinois, and are contained within the lines of the last, or second of the two tracts, described and purporting to be granted and conveyed to Louis Viviat and others, by the deed of October 18th, 1775; and that William M'Intosh, the defendant, entered upon these lands under, and by virtue of his patent, and became possessed thereof before the institution of this suit.
22d. That Thomas Johnson, one of the grantees, in and under the deed of October 18th, 1775, departed this life on or about the 1st day of October, 1819, seised of all his undivided part or share of, and in the two several tracts of land, described and purporting to be granted and conveyed to him and others by that deed, having first duly made and published his last will and testament in writing, attested by three credible witnesses, which he left in full force, and by which he devised all his undivided share and part of those two tracts of land, to his son, Joshua Johnson, and his heirs, and his grandson, Thomas J. Graham, and his heirs, the lessors of the plaintiff in this action, as tenants in common.
23d. That Joshua Johnson, and Thomas J. Graham, ham, the devisees, entered into the two tracts of land last above mentioned, under and by virtue of the will, and became thereof seised as the law requires. That Thomas Johnson, the grantee and devisor, during his whole life, and at the time of his death, was an inhabitant and citizen of the State of Maryland; that Joshua Johnson, and Thomas J. Graham, the lessors of the plaintiff, now are, and always have been, citizens of the same State; that the defendant, William M'Intosh, now is, and at and before the time of bringing this action was, a citizen of the State of Illinois; and that the matter in dispute in this action is of the value of 2000 dollars, current money of the United States, and upwards.
24th. And that neither William Murray, nor any other of the grantees under the deed of July the 5th, 1773, nor Louis Viviat, nor any other of the grantees under the deed of October the 8th, 1775, nor any person for them, or any of them, ever obtained, or had the actual possession, under and by virtue of those deeds, or either of them, of any part of the lands in them, or either of them, described and purporting to be granted; but were prevented by the war of the American revolution, which soon after commenced, and by the disputes and troubles which preceded it, from obtaining such possession; and that since the termination of the war, and before it, they have repeatedly, and at various times, from the year 1781, till the year 1816, petitioned the Congress of the United States to acknowledge and confirm their title to those lands, under the purchases and deeds in question, but without success.
Judgment being given for the defendant on the case stated, the plaintiffs brought this writ of error.
Feb. 17th. 18th, and 19th.
The cause was argued by Mr. Harper and Mr. Webster for the plaintiffs, and by Mr. Winder and Mr. Murray for the defendants. But as the arguments are so fully stated in the opinion of the Court, it is deemed unnecessary to give any thing more than the following summary.
On the part of the plaintiffs, it was contended, 1. That upon the facts stated in the case, the Piankeshaw Indians were the owners of the lands in dispute, at the time of executing the deed of October 10th, 1775, and had power to sell. But as the United States had purchased the same lands of the same Indians, both parties claim from the same source. It would seem, therefore, to be unnecessary, and merely speculative, to discuss the question respecting the sort of title or ownership, which may be thought to belong to savage tribes, in the lands on which they live. Probably, however, their title by occupancy is to be respected, as much as that of an individual, obtained by the same right, in a civilized state. The circumstance, that the members of the society held in common, did not affect the strength of their title by occupancy. [a] In the memorial, or manifesto, of the British government, in 1755, a right of soil in the Indians is admitted. It is also admitted in the treaties of Utrecht and Aix la Chapelle. The same opinion has been expressed by this Court, [b] and by the Supreme Court of New-York. [c] In short, all, or nearly all, the lands in the United States, is holden under purchases from the Indian nations; and the only question in this case must be, whether it be competent to individuals to make such purchases, or whether that be the exclusive prerogative of government.
2. That the British king's proclamation of October 7th, 1763, could not affect this right of the Indians to sell; because they were not British subjects, nor in any manner bound by the authority of the British government, legislative or executive. And, because, even admitting them to be British subjects, absolutely, or sub modo, they were still proprietors of the soil, and could not be devested of their rights of property, or any of its incidents, by a mere act of the executive government, such as this proclamation.
3. That the proclamation of 1763 could not restrain the purchasers under these deeds from purchasing; because the lands lay within the limits of the colony of Virginia, of which, or of some other British colony, the purchasers, all being British subjects, were inhabitants. And because the king had not, within the limits of that colonial government, or any other, any power of prerogative legislation; which is confined to countries newly conquered, and remaining in the military possession of the monarch, as supreme chief of the military forces of the nation. The present claim has long been known to the government of the United States, and is mentioned in the Collection of Land Laws, published under public authority. The compiler of those laws supposes this title void, by virtue of the proclamation of 1763. But we have the positive authority of a solemn determination of the Court of King's Bench, on this very proclamation, in the celebrated Grenada case, for asserting that it could have no such effect. [d] This country being a new conquest, and a military possession, the crown might exercise legislative powers, until a local legislature was established. But the establishment of a government establishes a system of laws, and excludes the power of legislating by proclamation. The proclamation could not have the force of law within the chartered limits of Virginia. A proclamation, that no person should purchase land in England or Canada, would be clearly void.
4. That the act of Assembly of Virginia, passed in May, 1779, [e] cannot affect the right of the plaintiffs, and others claiming under these deeds; because, on general principles, and by the constitution of Virginia, the legislature was not competent to take away private, vested rights, or appropriate private property to public use, under the circumstances of this case. And because the act is not contained in the revisal of 1794, and must, therefore, be considered as repealed; and the repeal reinstates all rights that might have been affected by the act, although the territory, in which the lands in question lie, was ceded to the United States before the repeal. The act of 1779 was passed after the sales were made, and it cannot affect titles previously obtained. At the time of the purchases there was no law of Virginia rendering such purchases void. If, therefore, the purchases were not affected by the proclamation of 1763, nor by the act of 1779, the question of their validity comes to the general inquiry, whether individuals, in Virginia, at the time of this purchase, could legally obtain Indian titles. In New-England, titles have certainly been obtained in this mode. But whatever may be said on the more general question, and in reference to other colonies or States, the fact being, that in Virginia there was no statute existing at the time against such purchases, mere general considerations would not apply. It may be true, that in almost all the colonies, individual purchases from the Indians were illegal; but they were rendered so by express provisions of the local law. In Virginia, also, it may be true, that such purchases have generally been prohibited; but at the time the purchases now in question were made, there was no prohibitory law in existence. The old colonial laws on the subject had all been repealed. The act of 1779 was a private act, so far as respects this 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 submit their case to the Legislature.
On the part of the defendants, it was insisted, that the uniform understanding and practice of European nations, and the settled law, as laid down by the tribunals of civilized states, denied the right of the Indians to be considered as independent communities, having a permanent property in the soil, capable of alienation to private individuals. They remain in a state of nature, and have never been admitted into the general society of nations. [f] All the treaties and negotiations between the civilized powers of Europe and of this continent, from the treaty of Utrecht, in 1713, to that of Ghent, in 1814, have uniformly disregarded their supposed right to the territory included within the jurisdictional limits of those powers. [g] Not only has the practice of all civilized nations been in conformity with this doctrine, but the whole theory of their titles to lands in America, rests upon the hypothesis, that the Indians had no right of soil as sovereign, independent states. Discovery is the foundation of title, in European nations, and this overlooks all proprietary rights in the natives. [h] The sovereignty and eminent domain thus acquired, necessarily precludes the idea of any other sovereignty existing within the same limits. The subjects of the discovering nation must necessarily be bound by the declared sense of their own government, as to the extent of this sovereignty, and the domain acquired with it. Even if it should be admitted that the Indians were originally an independent people, they have ceased to be so. A nation that has passed under the dominion of another, is no longer a sovereign state. [i] The same treaties and negotiations, before referred to, show their dependent condition. Or, if it be admitted that they are now independent and foreign states, the title of the plaintiffs would still be invalid: as grantees from the Indians, they must take according to their laws of property, and as Indian subjects. The law of every dominion affects all persons and property situate within it; [j] and the Indians never had any idea of individual property in lands. It cannot be said that the lands conveyed were disjoined from their dominion; because the grantees could not take the sovereignty and eminent domain to themselves.
Such, then, being the nature of the Indian title to lands, the extent of their right of alienation must depend upon the laws of the dominion under which they live. They are subject to the sovereignty of the United States. The subjection proceeds from their residence within our territory and jurisdiction. It is unnecessary to show, that they are not citizens in the ordinary sense of that term, since they are destitute of the most essential rights which belong to that character. They are of that class who are said by jurists not to be citizens, but perpetual inhabitants with diminutive rights. [k] The statutes of Virginia, and of all the other colonies, and of the United States, treat them as an inferior race of people, without the privileges of citizens, and under the perpetual protection and pupilage of the government. The act of Virginia of 1662, forbade purchases from the Indians, and it does not appear that it was ever repealed. The act of 1779 is rather to be regarded as a declaratory act, founded upon what had always been regarded as the settled law. These statutes seem to define sufficiently the nature of the Indian title to lands; a mere right of usufruct and habitation, without power of alienation. By the law of nature, they had not acquired a fixed property capable of being transferred. The measure of property acquired by occupancy is determined, according to the law of nature, by the extent of men's wants, and their capacity of using it to supply them. [l] It is a violation of the rights of others to exclude them from the use of what we do not want, and they have an occasion for. Upon this principle the North American Indians could have acquired no proprietary interest in the vast tracts of territory which they wandered over; and their right to the lands on which they hunted, could not be considered as superior to that which is acquired to the sea by fishing in it. The use in the one case, as well as the other, is not exclusive. [m] According to every theory of property, the Indians had no individual rights to land; nor had they any collectively, or in their national capacity; for the lands occupied by each tribe were not used by them in such a manner as to prevent their being appropriated by a people of cultivators. All the proprietary rights of civilized nations on this continent are founded on this principle. The right derived from discovery and conquest, can rest on no other basis; and all existing titles depend on the fundamental title of the crown by discovery. The title of the crown (as representing the nation) passed to the colonists by charters, which were absolute grants of the soil; and it was a first principle in colonial law, that all titles must be derived from the crown. It is true that, in some cases, purchases were made by the colonies from the Indians; but this was merely a measure of policy to prevent hostilities; and William Penn's purchase, which was the most remarkable transaction of this kind, was not deemed to add to the strength of his title. [n] In most of the colonies, the doctrine was received, that all titles to land must be derived exclusively from the crown, upon the principle that the settlers carried with them, not only all the rights, but all the duties of Englishmen; and particularly the laws of property, so far as they are suitable to their new condition. [o] In New-England alone, some lands have been held under Indian deeds. But this was an anomaly arising from peculiar local and political causes. [p]
As to the effect of the proclamation of 1763: if the Indians are to be regarded as independent sovereign states, then, by the treaty of peace, they became subject to the prerogative legislation of the crown, as a conquered people, in a territory acquired, jure belli, and ceded at the peace. [q] If, on the contrary, this country be regarded as a royal colony, then the crown had a direct power of legislation; or at least the power of prescribing the limits within which grants of land and settlements should be made within the colony. The same practice always prevailed under the proprietary governments, and has been followed by the government of the United States.
Mr. Chief Justice MARSHALL delivered the opinion of the Court.
^a Grotius, de J. B. ac P. l. 2. c. 2. s. 4. l. 2. c. 24. s. 9. Puffen. l. 4. c. 5. s. 1. 3.
^b Fletcher v. Peck, 6 Cranch's Rep. 646.
^c Jackson v. Wood, 7 Johns. Rep. 296.
^d Campbell v. Hall, 1 Cowp. Rep. 204.
^e This statute is as follows: 'An act for declaring and asserting the rights of this Commonwealth, concerning purchasing lands from Indian natives. To remove and prevent all doubt concerning purchases of lands from the Indian natives, Be it declared by the General Assembly, that this Commonwealth hath the exclusive right of pre-emption from the Indians, of all the lands within the limits of its own chartered territory, as described by the act and constitution of government, in the year 1776. That no person or persons whatsoever, have, or ever had, a right to purchase any lands within the same, from any Indian nation, except only persons duly authorized to make such purchases on the public account, formerly for the use and benefit of the colony, and lately of the Commonwealth, and that such exclusive right or pre-emption, will and ought to be maintained by this Commonwealth, to the utmost of its power.
'And be it further declared and enacted, That every purchase of lands heretofore made, by, or on behalf of, the crown of England or Great Britain, from any Indian nation or nations, within the before mentioned limits, doth and ought to enure for ever, to and for the use and benefit of this Commonwealth, and to or for no other use or purpose whatsoever; and that all sales and deeds which have been, or shall be made by any Indian or Indians, or by 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 no effect.'
^f Penn v. Lord Baltimore, 1 Ves. 445. 2 Rutherforth's Inst. 29. Locke, Government, b. 2. c. 7. s. 87-89. c. 12. s. 143. c. 9. s. 123-130. Jefferson's Notes, 126. Colden's Hist. Five Nations, 2-16. Smith's Hist. New-York, 35-41. Montesquieu, Esprit des Loix, l. 18. c. 11, 12, 13. Smith's Wealth of Nations, b. 5. c. 1.
^g 5 Annual Reg. 56. 233. 7 Niles' Reg. 229.
^h Marten's Law of Nations, 67. 69. Vattel, Droit des Gens. l. 2. c. 7. s. 83. l. 1. c. 18. s. 204, 205.
^i Vattle, 1. 1. c. 1. s. 11.
^j Cowp. Rep. 204.
^k Vattel, l. 1. c. 19. s. 213.
^l Grotius, l. 2. c. 11. Barbeyr. Puffend. l. 4. c. 4. s. 2. 4. 2 Bl. Comm. 2. Puffend. l. 4. c. 6. s. 3. Locke on Government, b. 2. c. 5. s. 26. 34-40.
^m Locke, c. 5. s. 36-48. Grotius, l. 2. c. 11. s. 2. Montesquieu, tom. 2. p. 63. Chalmers' Polit. Annals, 5. 6 Cranch's Rep. 87.
^n Penn v. Lord Baltimore, 1 Ves. 444. Chalmers' Polit. Annals, 644. Sullivan's Land Tit. c. 2. Smith's Hist. N. Y. 145. 184.
^o 1 Bl. Comm. 107. 2 P. Wms. 75. 1 Salk. 411. 616.
^p Sulliv. Land Tit. 45.
^q Cowp. 204. 7 Co. Rep. 17 b. 2 Meriv. Rep. 143.