Certainly. But it is also “incompatible with an absolute and perfect title” in the white man! Here again, in their desire to define and enforce the greater right, by making it so clear that it included the lessor one, they equally define and enforce the lesser right as a thing to be included. The word “subject” is a strong participle when it is used legally. Provisions are made in wills, “subject to” a widow's right of dower, for instance, and the provisions cannot be carried out without the consent of the person to whom they are thus declared to be “subject.” A title which is pronounced to be “subject to” anything or anybody cannot be said to be absolute till that subjection is removed.
There have been some definitions and limitations by high legal authority of the methods in which this Indian “right of occupancy” might be extinguished even by conquest.
“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. Usually they are incorporated with the victorious nation, and become subjects or citizens of the government with which they are connected. * * * When 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. * * * 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.”[1]
- ↑ Peters, United States Statutes at Large, vol. vii.
