the actual or supposed expenditures and hazards attendant upon such enterprises, it received a universal acquiescence, if not a ready approbation. It became the basis of European polity, and regulated the exercise of the rights of sovereignty and settlement in all the cis-Atlantic Plantations.[1] In respect to desert and uninhabited lands, there does not seem any important objection, which can be urged against it. But in respect to countries, then inhabited by the natives, it is not easy to perceive, how, in point of justice, or humanity, or general conformity to the law of nature, it can be successfully vindicated. As a conventional rule it might properly govern all the nations, which recognised its obligation; but it could have no authority over the aborigines of America, whether gathered into civilized communities, or scattered in hunting tribes over the wilderness. Their right, whatever it was, of occupation or use, stood upon original principles deducible from the law of nature, and could not be justly narrowed or extinguished without their own free consent.
§ 3. There is no doubt, that the Indian tribes, inhabiting this continent at the time of its discovery, maintained a claim to the exclusive possession and occupancy of the territory within their respective limits, as sovereigns and absolute proprietors of the soil. They acknowledged no obedience, or allegiance, or subordination to any foreign sovereign whatsoever; and as far as they have possessed the means, they have ever since asserted this plenary right of dominion, and yielded it up only when lost by the superior force of conquest, or transferred by a voluntary cession.
- ↑ Johnson v. M'Intosh, 8 Wheat. R. 543, 572, 573; 1 Doug. Summ. 110.
