Ohio History Journal

OHIO

Archaeological and Historical

 

QUARTERLY.

 

 

 

VOL. II.         DECEMBER, 1888.               No. 3

 

 

THE RIGHT OF DISCOVERY.

 

"ONE of the most interesting subjects in the whole history of law."-

Dr. Francis Lieber, Miscellaneous Writings, II, 26.

THE great geographical discoveries of the fifteenth and

sixteenth centuries led to two series of remarkable changes

in the relations of the principal nations of Western Europe.

First, those nations were brought into direct contact with

the natives of the newly discovered lands, east and west,

all of whom were heathen, a vast number of whom were

savages, and none of whom, to appropriate a figure of Pro-

fessor Seeley's, were more able to resist their discoverers

than a herd of antelopes is able to resist a party of hunters.

" The contact which Columbus established," says Professor

Seeley, "being the most strange and violent which ever

took place between two parts of the human family, led to

a fierce struggle, and furnished one of the most terrible

pages to the annals of the world."1  This, however, is far

from all. The contact established with the natives of

Africa, of Asia, and of the islands of the sea also led to

fierce struggles and contributed other terrible pages to the

same annals. But, secondly, the contact established with

1The Expansion of England, 44. Boston, 1884.

349

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350  Ohio Archaeological and Historical Quarterly.

the new lands brought the Western powers into new and

strange relations with one another; relations involving

changes moral, social, industrial, political, legal, and re-

ligious that can hardly be overestimated.

The first thing that the maritime powers did when the

contact began, was to appropriate the new countries, lands,

and peoples to their own uses. This was a foregone con-

clusion. The only open questions at any time following

discovery were, who should make the appropriations, and

the manner in which they should be made. These ques-

tions, but more especially the second one, it is proposed to

investigate.

The first fact to strike the mind as we enter upon this

investigation is, that the appropriations were made and

justified on a new principle. Mr. Wheaton observes that

nearly all the nations of Europe hold their European ter-

ritory by a title which "was originally derived from con-

quest, which has been subsequently confirmed by long

possession and international compacts, to which all the

European States have successively become parts." The

meaning of this is, that titles which began in violence

have been confirmed and strengthened, and in a sense

purged, by that form of presumption arising from lapse of

time which the text-writers call prescription. "The con-

stant and approved practice of nations shows," says Mr.

Wheaton, "that . . . . . the uninterrupted posses-

sion of territory, or other property, for a certain length of

time, by one state, excludes the claims of every other; in

the same manner as, by the law of nature and the munici-

pal code of every civilized nation, a similar possession by

an individual excludes the claim of every other person to

the article of property in question." "This rule," he pro-

ceeds, "is founded upon the supposition, confirmed by

constant experience, that every person will naturally

seek to enjoy that which belongs to him; and the infer-

ence fairly to be drawn from his silence and neglect, of

• 2
 

The Right of Discovery.            351

the original defect of his title, or his intention to relin-

quish it."  Such is the law of the civilized world in the

nineteenth century, and such it was in the fifteenth.

Then, as now, the powers rested on prescription in the

first place; they pointed to some original act of conquest

in the second place, and they defended their claims by

arms in the third place. The Franks had overrun Gaul,

the Goths Spain, the Saxons and afterwards the Normans

England, and behind these conquests no one presumed to

go in quest of a national title. However, prescription,

which would have given the original inhabitants of the

newly discovered lands, at least the most advanced of

them, the territories that they occupied, was strictly lim-

ited to Christian powers. The rule had no application

whatever to the infidels of either east or west. Nor was

prescription an indefeasible title even in Christian Europe;

war and conquest were still accounted lawful; kings were

not restrained, either by sense of justice or by sentiment,

from extending their boundaries by force of arms: so that

the only perfectly conclusive title to territory was the

military power to defend it. Hence there was nothing in

the public law of Europe, or in the morality of the times, to

restrain the maritime powers from taking possession of

the new lands. It was perfectly competent for them to

draw the sword, to overrun and conquer the lands, and

then to plead conquest as a title-deed. Besides, this was

the direct and simple path to that end. This is what

Ferdinand the Catholic did in the case of Granada, but

it is not what the maritime states did in the case of

America. They chose rather a circuitous path to their

goal. They did indeed draw the sword, and they appro-

priated the lands by force; neither then nor afterwards,

however, did they justify what they did on the ground of

force, save in a secondary sense, but pleaded a very differ-

ent principle. What this principle was, will appear as we

 

1 Elements of International Law, Part II, 165:164. Dana's Edition.

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352   Ohio Archaeological and Historical Quarterly.

proceed, and also the reasons why, as we think, this prin-

ciple was adopted.

To the mind of Christian Europe in the fifteenth cen-

tury the distinction between Christian and Infidel was in-

effaceable. After stating that the Church, as a church,

did not promote African slavery, but sometimes discour-

aged it, and quoting Soto, the law adviser of Charles V,

who said that as respects slavery and the slave trade there

can be no difference between Christians and Pagans, be-

cause the law of nations is equal to all nations, Dr. Lieber

says: "The general feeling, however, was, especially at

the earlier times, that paganism, which meant not being

baptized, deprived the individual of those rights which a

true jural morality considers inherent in each human

being. The fact of being baptized or not being baptized

determined a claim to the commonest rights, nay more, to

mere sympathy with bodily suffering."¹ Mr. Wheaton

states the case thus: "According to the European ideas

of that age, the heathen nations of the other quarters of

the globe were the lawful spoil and prey of their civilized

conquerors."² Mr. H. H. Bancroft says: "That they [the

native West Indians] possessed any rights, any natural or

inherent privileges in regard to their lands or their lives;

that these innocent and inoffensive people were not fit

subjects for coercion, treachery, robbery, enslavement, and

slaughter, was a matter which seems never to have been

questioned at that time by either discoverer, adventurer,

or ruler. However invalid in any of the Spanish courts

might have been the argument of a housebreaker, that in

the room he entered he discovered a purse of gold, and

took it, Spaniards never thought of applying such logic to

themselves in regard to the possessions of the natives in

the new lands their Genoese had found.^"3 How fierce was

 

1 Miscellaneous Writings, II, 23, 24. Philadelphia, 1881.

2 International Law, II, 166.

3 History of Central America, I, 165, 166. San Francisco, 1883.

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The Right of Discovery.           353

the spirit that sometimes burned in Christian breasts, is

shown by an address made by Dr. Pedro de Santander to the

King of Spain, July 15, 1557. He says of Florida: "This

is the Land of Promise, possessed by idolators, the Amor-

ite, Amulekite, Moabite, Canaanite. This is the land

promised by the Eternal Father to the Faithful, since we

are commanded by God in the Holy Scriptures to take it

from them, being idolators, and, by reason of their idola-

try and sin, to put them all to the knife, leaving no living

thing save maidens and children, their cities robbed and

sacked, 'their walls and houses leveled to the earth."1

This was saying in effect that heathen had no rights

whatever that Christians were bound to respect.  On

this moral basis, strengthened by race and color hatred,

was reared the structure of African slavery; a struct-

ure that the Portugese began at the very time when they

first applied the same morality to the lands and posses-

sions of the heathen whom they found on the African

coast beyond Cape Bojador.

Still another fact is essential to an understanding

of the subject. According to the European ideas of that

age, not only were the heathen nations of other quarters

of the globe the lawful spoil of their civilized conquerors,

but, as between the Christians themselves, the sovereign

Pontiff was the Supreme Arbiter. The Christian powers

might spoil the heathen as they liked, but if they could

not agree in their spoliations, then the Pontiff should de-

cide among them. But if the Pontiff might adjust con-

flicting claims as a judge, why might he not prevent them

as a legislator? Antecedently there were no reasons why

he should not, and many reasons why he should do so.

Moreover, the very conception of the Papal Vicariate was

favorable to such a course. Not only had the heathen

been given to the Vicar as an inheritance, and the utter-

 

1 Quoted by Mr. Parkman, The Pioneers of France in the New World, 13.

note. Boston, 1870.

 

Vol. II-23

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354  Ohio Archaeological and Historical Quarterly.

most parts of the earth as a possession, but he had juris-

diction over the Christian states as well. The spiritual

sword bore rule over the temporal sword. Even the hu-

mane Dominican Las Casas, in the celebrated "Proposi-

tions" written to repel the idea that savages might be

converted by force, assumes that the Pope has authority

over all men, Christians and infidels alike, in matters of

salvation; that it is the Pope's duty to propagate the gos-

pel; that he may oblige Christian princes to do this work,

and that he may distribute infidel provinces among

them for this purpose: which shows what were the Chris-

tian ideas of the time in their mildest form, and that the

gentle priest was not altogether superior to his age.¹ It

was on this high ground that the first division of the

heathen world was made.

In 1415 Prince Henry of Portugal, surnamed the Navi-

gator, reviving the idea of the peninsular form of Africa,²

that Pomponius Mela had thrown out about the beginning

of our era, began that search for an ocean-path to the

Indies to which he devoted the remainder of his days,

and which Vasco da Gama, two generations later, in the

harbor of Calcutta, brought to a successful termination.

The Prince's great undertaking involved an expenditure

of money and life that none in his day but great princes

were capable of maintaining. He had the interest in this

undertaking that superior minds always have in their own

bold ideas; he was a large-minded man, ready to do for

science and discovery more than any of his contempo-

raries; he was an ardent patriot, intent on the glory of

Portugal, and a zealous Catholic, anxious to spread the

true faith; moreover, no one for the time appeared to com-

pete with him for the arduous honor of solving the Afri-

can problem and of finding the new road to the East.

 

1 The Narrative and Critical History of America, II, 321, 322. Boston.

2 The commonly accepted idea was that Africa turned eastward and

joined Asia, thus making the Indian Ocean an inland sea.

• 6
 

The Right of Discovery.            355

But the Prince's forecast told him that such competition

was likely to arise; told him, particularly, that it was sure to

do so the moment his undertaking should be crowned with

success; told him, also, that the very success of his whole

endeavor, in contingencies quite likely to occur, would de-

pend upon his continuing to hold the monopoly which his

genius had given him. His only resort for protection was

to the Roman Pontiff, Vicar of Christ in both Christian and

heathen lands. Accordingly, on the return of Gonsalvo,

one of his captains, from his successful voyage in 1451,

the Navigator sent to Martin V " the news of this discov-

ery as the first fruits of his long-continued exertions, and

prayed for a concession in perpetuity to the crown of

Portugal of whatever lands might be discovered beyond

Cape Bojador, to the Indies inclusive, especially submit-

ting to His Holiness that the salvation of these people

was the principal object of his labor in that conquest.

The news of this discovery was considered so valuable by

the Pope and the College of Cardinals that a bull was

forthwith issued in conformity with the request, and was

subsequently confirmed by the Popes Nicholas V and Six-

tus IV."¹ The resort of the Prince to Rome shows as well

the estimation in which that see was held, as that the rule

of law known as the Right of Discovery had not yet taken

definite form. It is also clear that the Pontiff would see

in the Prince's ventures the promise of an enlargement

of Christendom and of the Papal See, that he would feel

flattered by the Prince's piety, that a concession would

give the Prince moral support in the eyes of his country-

men, and that all these motives would constrain him to

make a favorable reply. Hence the concession. How-

ever, five years before Gama reached Calcutta, another

Pope had followed the example set by Martin V, granting

a similar concession to another power.

 

1 Major: The Discoveries of Prince Henry the Navigator, 9. London,

1877.

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356  Ohio Archaeological and Historical Quarterly.

The commission that the Spanish sovereigns gave to

Columbus, April 30, 1492, contains no allusion to religion.1

It speaks of the Admiral's going, by their command, with

some of their vessels and men, to discover some islands

and continents in the ocean, and expresses the hope that,

by God's assistance, he may be successful. On his return

the next year, Ferdinand and Isabella, anxious both to

honor the Pope and to secure to themselves the exclusive

possession of the Western countries, resorted to Alexan-

der VI for a concession similar to the one granted to

Prince Henry forty-two years before. They were careful

to intimate to His Holiness that their learned advisers in-

formed them that such a concession was unnecessary, thus

hinting a title by discovery; but as they were Catholic

princes in fact as well as in name, they were unwilling to

take additional steps in the ocean-path that Columbus had

found, without the papal sanction. Pleased with this mark

of deference, and anxious to strengthen his pontificate, on

which he had just entered, His Holiness, who was him-

self a Spaniard, hastened to respond to their request. On

the third of May, 1493, he issued a bull of concession, and

on the day following a bull of partition that, together, left

undone nothing that their hearts could wish. Historians

have much difficulty to harmonize in some points the two

documents, but their purport and spirit can be well shown

by a summary of the second one.

The Sovereign Pontiff begins with asserting that among

the works well pleasing to the Divine Majesty, and dear to

himself, the servant of the servants of God, the exaltation

and increase of the Christain faith and Catholic church

are very prominent. He celebrates the devotion of the

Spanish sovereigns to this cause, particularly as shown in

the recent conquest of Granada. He briefly recites the

discovery by Columbus of certain remote lands before un-

 

1 It is found in Poore: Constitutions and Charters, 304, 305. Washing-

ton, 1878.

• 8
 

The Right of Discovery.          357

known, peopled by many nations who are peaceful, be-

lievers in one God, the Creator, fitted to embrace the

Catholic faith and to cultivate good morals. He under-

stands that his dear son and daughter in Christ, for vari-

ous reasons, but especially for the exaltation of religion,

desire to conquer these lands and so lead these nations to

the Catholic faith. He commends this holy purpose, and

exhorts them to prosecute it with zeal, not allowing dan-

ger or toil to hinder them; and that they may assume this

great undertaking the more freely and boldly, he, in the

plentitude of his apostolic power, not at their instance,

nor at the request of anyone in their behalf, but of his

own liberality, gives them all the main lands and all the

islands found hitherto, and yet to be found, westward and

southward of a line drawn from the north to the south

pole one hundred leagues west and south of the Azores and

Cape Verde Islands, whether in the direction of India or

in any other direction, except such lands and islands as

may have been in possession of some Christian prince

on Christmas day preceding. West and south of said

line, with the limitation just noted, he, Alexander VI, by

the authority of God omnipotent, granted to him in

blessed Peter, which he also enjoys as Vicar of Jesus

Christ on earth, gives, grants, and assigns forever, all prop-

erties, states, camps, places, and villages, whether discov-

ered or yet to be discovered, as an eternal possession to

the rulers of Castile and Leon, their heirs and successors

forever, with full and perpetual authority and jurisdiction.

He commands them to use all diligence in sending to

these remote lands and countries God-fearing, learned,

and experienced men, well fitted to instruct the people in

the faith; and, that nothing may be wanting to their

proper encouragement and security, he strictly forbids all

persons whatever, even those of royal and imperial state,

under penalty of excommunication, to approach the afore-

said lands for trade or any other purpose whatever, with-

out the special permission of the Spanish princes. His

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358  Ohio Archaeological and Historical Quarterly.

Holiness then provides for the publication of this his bull,

and concludes with the declaration that any man who in-

terferes with its publication or disobeys it, will incur the

wrath of Almighty God and of the blessed Apostles Peter

and Paul.1

This bull makes no formal mention of the King of

Portugal; but the reservation made in favor of any Chris-

tian prince who was in possession of lands west of the

100-league line on Christmas day, 1492, was made in his

interest. The concession to Spain must, therefore, be

taken in connection with the concession previously grant-

ed to Portugal. Together, these bulls divide all those

parts of the globe that were unknown at Rome, Lisbon,

and Barcelona in the fifteenth century, whether land or

water, between the two nations; that is, the major parts

of Africa and Asia, the whole of America, and the islands of

the sea. These concessions are not made ostensibly on

the ground that the Portugese and Spaniards have discov-

ered the regions conceded, nor do they recognize discovery

at all, save as it may aid the two powers in settling dis-

puted points along the 100-league line. The Popes act in

the plentitude of their power as Vicars of Christ and

Heads of the Church. They do not limit the concessions

to lands already discovered. When Martin V gave the

East to Portugal, Prince Henry's captains had reached

only as far as the Guinea coast, and when Alexander VI

gave the West to Spain, Columbus had found but a few

of the Western islands.   And yet the latter Pontiff is

careful to say two or three times over, that his gift in-

cludes the lands to be discovered as well as those already

discovered. In these matters, therefore, the Popes acted

in their very grandest manner. In effect, they signed,

sealed, and delivered to the sovereigns of Portugal and

Spain blank deeds to all the unknown parts of the globe,

 

1 This bull is found, in Latin, in Poore: Constitutions and Charters, 305,

seq.

• 10
 

The Right of Discovery.                   359

and told those sovereigns to write in the descriptions as

quickly as possible. That Spain's original title to Amer-

ica, thus conferred, was something quite different from

priority of discovery, as known in modern international

law, will abundantly appear as we proceed with the

subject.

Careful as the Pope had been to guard, in the bull of

partition, the rights of Portugal, that power, nevertheless,

immediately took the alarm. The King of Portugal was

quite willing to accept a bi-partite division of the heathen

world, but quite unwilling to accept the one that the Pope

had actually made.       His   remonstrances led to a new

division, consummated by what is commonly called the

Capitulation of Tordesillas, but sometimes the Treaty of

Partition of the Ocean, entered into by the two powers

in 1494, and ratified by Pope Julius in 1506. The bi-partite

division was accepted, but the line of demarkation was

now drawn 370 leagues west of the Azores.1

This celebrated treaty was followed by many important

consequences, some of which should be mentioned. It

excluded Spain from Africa, and from the eastern road to

the Indies.   It excluded Portugal from North America, but

 

1 The cause of Portugal's alarm is not very clear. The common explana-

tion is, that she wanted more sea-room in the Atlantic, and that is probably

the correct one. She seems not to have understood that crowding the line

of limitation 270 leagues towards America was crowding it the same distance

towards Asia ; that widening her sea-room in the Atlantic was narrowing it

in the Indian Ocean. However, in 1493 her navigators had not reached the

Spice Islands, and Brazil had not been discovered. We must also remember

the fact stated by Humboldt : " Not only one hemisphere, but almost two-

thirds of the earth was then a new and unexplored world-as unsee as that

portion of the moon's surface which the law of gravitation constantly averts

from the glance of the inhabitants of the earth." '(Cosmos ii, 648, London,

1849). The fact is, men were a long time in getting accustomed to think of

the earth as a sphere. Pope Alexander VI not only supposed the Azores

and Cape Verde Islands to be in the same longitude, but he speaks of

distance "south" of a meridian line. The meridian designated by His

Holiness was supposed, at the time, to be the meridian of no magnetic

variation.

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360    Ohio Archaeological and Historical Quarterly.

gave her Brazil, that would also have fallen to her under

the rule of priority, since it was discovered by Cabral, a

Portuguese. It was one of the causes that led to the first

circumnavigation of the earth and to the demonstration of

its sphericity. It provoked angry disputes as to where the

line of division actually fell on both sides of the globe, and

disputes as to the ownership of such important groups

of islands as the Moluccas and the Phillipines.¹ It led to

attempts to exclude all ships but those of Portugal from

the Indian Ocean, and all ships but those of Spain from

the Pacific. It led to the writing of famous books on the

laws that should govern the navigation of the sea.²  But

it wholly failed to accomplish the grand end for which it

was intended, viz.: the division of the ocean between the

two powers of the Iberian Peninsula. The two nations

indeed founded vast empires in the new countries, but

this was due to their great military power and maritime

enterprise, and to the fact that they were pioneers in dis-

covery and exploration, rather than to the Popes' bulls

and the Treaty of Tordesillas. The New World was too

large and the competing nations too eager and too power-

ful to permit such a measure to be carried out. England

and France, and afterwards Holland, were unwilling that

Portugal and Spain alone should share the spoil of the

Infidel. They refused to accept a parchment as a title

On the Atlantic side, the major point in dispute was where the line

would fall; the minor points were the point to measure from, the length

of the league to be used and the charts to be followed. On the Pacific

side, the Phillipine Islands, first discovered by Magellan, fell to Spain,

although on the Portugese side of the line.  Spain yielded her claim to

the Moluccas on receipt of 350,000 ducats of gold.

2 "The extravagant claims of Spain and Portugal to the exclusive do-

minion both of the lands and seas of the new world . . . were contested

by the Dutch, who had shaken off the political yoke of Spain and the relig-

ious yoke of Rome. Their great jurist, Grotius, took the lead in maintain-

ing the common rights of mankind to the free navigation, commerce, and

fisheries of the Atlantic and Pacific Oceans, against their pretensions. His

treatise De Marc Libero was published in 1609."-Wheaton: History of Law

of Nations, 153. New York, 1845.

• 12
 

The Right of Discovery.            361

deed to a continent, 16,000,000 square miles in extent, that

was wholly unknown to civilized men when the parch-

ment was signed, no matter whether it was dated at

Tordesillas or at Rome; nor would they admit that the

uplifting of a cross on a strange coast to the shout of

"Santiago" gave possession to half a world. At the time

the Kings of France and England were true sons of the

Church, as the King of France continued to be; but the

Papacy had never been strong enough to impose upon

three-fourths of the globe such conditions as those made

in 1493 and 1506. Spain and Portugal strove to the

utmost to establish the bi-partite division de facto, but

they failed, and were ultimately compelled to submit

their own claims to a rule that threw the ocean open to

all the maritime nations.¹

The spirit of discovery spread over Western Europe.

Columbus said that, after his first voyage, the very tailors

in Spain begged to become discoverers. The younger

Cabot wrote: "When newes was brought that Don Chris-

topher Colonos, Genoese, had discovered the coasts of

India, whereof was great talke in all the court of King

Henry 7, who then raigned, insomuch that all men with

great admiration affirmed it to be a thing more divine

than human to sail by the west into the east, where spices

grow, by a map that was never known before, by this fame

and report there increased in my heart a great flame of de-

sire to do some notable thing."² From this spirit of dis-

covery sprang the voyages of the Cabots and the English

plantations in America; the voyages of Verrazanno and

Cartier and the French establishments; and later the

maritime enterprises of the Dutch. When Sir Francis

Drake first saw the Pacific Ocean, he was vehemently

transported with desire to navigate that sea, and fell on

1 "Even in modern times, Spain has claimed the northwestern coasts

of America, upon the sole ground of having discovered them."- Philli-

more: International Law, Part III, Chap. XII.

2Narrative and Critical History of America, II, 136.

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362   Ohio Archaeological and Historical Quarterly.

his knees and implored the divine assistance that he

might some time sail thither and make a perfect discovery

of the same. When Spain complained to England that

Drake had invaded her ocean realm, Queen Elizabeth's

government replied that England did not acknowledge

Spain's claim to all that part of the world, no matter

whether that claim was based on the Pope's donation or on

the fact that Spanish navigators had touched those shores

at widely separated points. Replying to a complaint that

a French corsair had captured some Spanish treasure

ships, Francis I sent word to the Emperor Charles V that,

as the Emperor and the King of Portugal had divided the

world between themselves without offering him any part

of it, he would like them to show him our father Adam's

will, that he might convince himself whether he had really

constituted them sole heirs of those countries. As long

as they refused to comply with this, he would consider

himself justified in possessing himself of everything he

could on the high seas. It is also deserving of remark

that the extraordinary developments of piracy and bucca-

neering carried on by the English against Spain were

largely caused by the extravagant territorial pretensions

of that power. Thus, beyond Portugal and Spain neither

the Papal bull nor the Capitulation of Tordesillas was

anything more than a brutum fulmen.

The prompt repudiation of the bi-partite division of the

ocean by the maritime powers, and the ultimate throwing

open of the seas to discovery and exploration to all na-

tions that were in a position to enter into the competition,

rendered necessary some other rule of appropriation, un-

less, indeed, the new era were to be a mere carnival of

force and blood. Some criterion must be set up in the room

of the Popes' concessions. The Spanish sovereigns had

virtually hinted such a criterion when they told Alexander

VI, in 1493, that, according to their law advisers, they were

not dependent upon his donation. They meant, undoubt-

edly, that the discovery of the Western islands by their

• 14
 

The Right of Discovery.            363

ships, sent out at their expense, and commanded by an

admiral carrying their commission, was a sufficient title-

deed to these discoveries. This hint seems to be the

earliest suggestion of the modern Right of Discovery, into

the origin of which we are now to inquire.

Sir Henry Sumner Maine defines occupation (occupatio),

which was one of the natural modes of acquiring property

recognized by the Romans, as "advisedly taking posses-

sion of that which, at the moment, is the property of no

man, with the view (adds the technical definition) of ac-

quiring property in it for yourself."  Such property, before

appropriation, the Romans called res nullius, and they

divided it into two kinds, property that never had had an

owner, and property that had no owner at the time of the

appropriation. Examples of the first kind are wild ani-

mals taken in the chase, fishes caught in the sea, wild

fowl, jewels disinterred for the first time, and lands

newly discovered or never before cultivated. Examples

of the second kind are movables that have been aban-

doned, lands that have been deserted, and the property

of an enemy.   "In all these objects," says the learned

author, "the full rights of dominion were acquired by

the occupant who first took possession of them as his

own, an intention which, in certain cases, had to be mani-

fested by special acts." Occupancy in its simple form is

evidently a part of the universal law of nature, but the

occupancy of the Roman law consisted, to a considerable

degree, of artificial definitions of res nullius. Thus, the

habit of regarding an enemy's property as "nobody's"

property originated in " the assumption that communities

are restored to a state of nature by the outbreak of hostili-

ties, and that in the artificial-natural condition thus pro-

duced, the institution of private property falls into abey-

ance, so far as concerns the belligerents." On this point

 

1Ancient Law, Chap. VIII. "The Early History of Property." New

York. 1870.

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364   Ohio Archaeological and Historical Quarterly.

the dogmas of the lawyers "amounted to an unqualified

assertion that enemy's property of every sort is res nullius

to the other belligerent." As soon as men begin to rise

above the level of facts accomplished, and to cast about

them for theories, they shrink from pleading brute force as

a claim to anything; they seek to find some basis of moral

right, even when violence is the real basis of the claim;

and of this tendency no better illustration can be given

than these refinements of the Roman lawyers.

Sir H. S. Maine further asserts that "occupancy and the

rules into which the Roman lawyers expanded it, are the

sources of all modern international law on the subject of

capture in war, and of the acquisition of rights in newly

discovered countries." The learned jurist does not point

out, however, that the application of the Roman doctrine

to the New World in the sixteenth and seventeenth cen-

turies was made by means of a new definition of nullus.

The maritime powers did not acknowledge the savages

as their enemies, or plead the conqueror's rights in

relation to their Western claims. "The English pos-

sessions in America were not claimed by right of con-

quest, but of discovery," says Chief Justice Marshall,

"and such was the claim of the other powers that di-

vided the New World." They had not seized the posses-

sions of their enemies by force, but had occupied what

belonged to nobody. Practically, discovery, when con-

summated, was conquest, but theoretically, it was some-

thing very different. An enemy overcome in battle was

nullus according to the Roman law, but another definition,

and one more consonant with the temper of the times,

was now adopted. This definition was supplied by the

Roman Church.

The new definition of nullus was, a heathen, pagan, in-

fidel, or unbaptized person. "Paganism, which meant

being unbaptized," says Dr. Lieber, " deprived the indi-

vidual of those rights which a true jural morality consid-

ers inherent in each human being." The same writer also

• 16
 

The Right of Discovery.           365

 

states that the Right of Discovery is founded "on the prin-

ciple that what belongs to no one be appropriated by

the finder^"1 but this principle becomes effectual only

when supplemented by the Church definition of nullus.

That definition supplied the lacking premise in the dem-

onstration. Grant that res nullius is the property of the

finder; that an infidel is nullus; that the American savage

is an infidel, and the argument is complete. That the

Church, one of whose great duties is to protect the weak

and helpless, should have supplied one-half the logic that

justified the spoliation and enslavement of the heathen,

is one of the anomalies of history.

We have seen that the Roman law furnished a full

legal justification for the appropriation of the New World

by the Christian nations. They had but to hold the sav-

ages their enemies and to treat them accordingly. That

was the simple and direct path to the predestined goal.

They chose another path. The causes that led to their

choice will be considered in another place more fully; but

here it is pertinent to say that to use the Church definition

rather than the Roman one, was more in accordance with

the theological temper of the times. That definition would

also well blend with the missionary aspect of discovery and

colonization, to which many Frenchmen and Spaniards

gave much attention. At all events, while the dogmatic

habit of mind was not strong enough to establish the Popes'

donations in public law, it was strong enough to cause the

the acceptance of the new definition of nullus. This is

abundantly shown by the quotations made above.

Perhaps the strongest proof of the correctness of the

view now advanced is furnished by the commissions, char-

ters, and patents granted to explorers by the Kings of Eng-

land. Henry VII, in 1496, commissioned John Cabot and

his sons "to seek out and discover all islands, regions, and

provinces whatsoever that may belong to heathens and in-

 

1 Miscellaneous Writings, II, 28.

• 17
 

366   Ohio Archaeological and Historical Quarterly.

fidels," and "to subdue, occupy, and possess these terri-

tories as his vassals and lieutenants." The charter granted

to Sir Walter Raleigh by Queen Elizabeth, in 1584, gave

him full liberty and license "to discover, search, find out,

and view such remote heathen and barbarian lands,

countries, and territories not actually possessed of any

Christian prince, nor inhabited by Christian people, as

to him shall seem good," etc. Afterwards the words

"heathen" and "barbarian" were omitted from           this

class of documents, but the phrase "not possessed of any

Christian prince, nor inhabited by any Christian people"

is found in charters of the next century, as in those

of Virginia, 1606, and New England, 1620. The disap-

pearance of the heathen qualification from the English

charters after 1620 was due in part to the fact that the

boundaries of claims had become more definite, but also

in part to the growing secularization of politics.

Such was the origin of the Right of Discovery, the criter-

ion to which the nations that had divided the New World

appealed in territorial controversies, and the ultimate

ground of title throughout the United States. How well

adapted it was to its purpose, at least how inevitable, is

shown by its acceptance by Portugal and Spain in room of

the bi-partite division sanctioned by the Popes. At first it

made little difference to those powers, such was the vastness

of their discoveries, whether they held by the one title or the

other, but in the end it made a very great difference. The

Papal donations gave them everything, even making great

oceans closed seas to the other powers; the Right of Dis-

Discovery gave them what they had discovered and

could hold.¹

 

1"The importance of the explorations completed by those nations dur-

ing the fifteenth and sixteenth centuries may be gathered from the fact that

from the date of the discovery of America by Columbus, and the exploration

of the Portugese navigators, Diaz, Da Gama, and Magellan, the daring mari-

ners of the Iberian Peninsula brought a new world into existence, and de-

fined the unvisited shores of the old. Not only were the West Indies and

• 18
 

The Right of Discovery.                    367

Having pointed out the sources of the Right and the

circumstances, in which it originated, we shall now at-

tempt a stricter analysis and definition.

I. Primarily the Right of Discovery was a rule which

governed, not the relations of discoverers and discovered,

but the relations of different discoverers. As the potent-

ates of the Old World " were all in pursuit of nearly the

same object, it was necessary," said Chief Justice Mar-

shall, in delivering the decision of the Supreme Court in

the celebrated case of Johnson and Graham's Lessee v. Mc-

Intosh, "in order to avoid conflicting settlements, and

subsequent 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 by con-

summated by possession."1 But the adoption of the prin-

the Spanish Main, together with the whole western shore of America, from

California to Cape Horn, explored by Spaniards, and the seaboard of the

Eastern Hemisphere, from Cape Bojador to Macao, traced out by the Portu-

gese, but those nationalities divided between them the honor of having dis-

covered the greater portion of the islands of the Eastern Archipelago and

Polynesia."-Low: Maritime Discovery, preface. London, 1881.

1 This case arose in the following way: In 1773 and 1775 the chiefs of

the Illinois and Piankeshaw Indians sold two large tracts of land in Illinois

and Indiana to certain parties, of whom Thomas Johnson, of Maryland, was

one. In 1818 the United States Government sold to William McIntosh

11,560 acres of land lying within one of the tracts. Johnson's interest in

this tract passed by devise to Joshua Johnson and Thomas J. Graham, who

leased to the plaintiff. The plaintiff brought a suit of ejectment agains

McIntosh in the United States District Court for Illinois. The Court de-

cided against him, and the case went up on error to the Supreme Court,

where the judgment below was affirmed, March 10, 1823. The plaintiff

alleged that the Revolution had prevented the purchasers of 1773 and 1775

taking possession of their lands, and that afterwards they had failed, after

repeated efforts, to get their titles confirmed. The sole issue was, whether

the Indians could make a valid sale of lands occupied by them to private

parties.-⁸ Wheaton's Reports, 515, seq.

• 19
 

368    Ohio Archaeological and Historical Quarterly.

 

ciple left many points of much importance and difficulty

unsettled.

2. First, all the authorities agree that discovery must

be consummated by possession and use.        Marshall has

just been quoted to that effect. Chancellor Kent calls

discovery alone "an imperfect title."  "Mere transient dis-

covery amounted to nothing, unless followed in a reasona-

ble time by occupancy and settlement, more or less per-

manent under the sanction of the state."       Sir Robert

Phillimore says "discovery, use, and settlement are all in-

gredients of that occupation which constitutes a valid

title to national acquisitions. Discovery, according to the

acknowledged practice of nations   .... furnishes an

inchoate title to possession in the discoverer. But the

discoverer must either, in the first instance, be fortified by

the public authority and by a commission from the state

of which he is a member, or his discovery must be subse-

quently adopted by that state."   He says further: "Con-

tinuous use is an indispensable element of occupation

properly so called. The mere erection of crosses, land

marks, and inscriptions is ineffectual for acquiring or main-

taining an exclusive title to a country of which no real

use is made."1

3. A much more difficult and not less important ques-

tion than this was the length of time to elapse before a

nation lost, through non-occupancy, the right that mere

discovery gave. It was a question that could not be an-

swered in terms. Much would depend on geographical

relations, the nearness of neighbors to the territory in ques-

tion, and the relative strength and enterprise of competing

powers. The Cabots discovered New Foundland, Lab-

rador, and Cape Breton near the end of the fifteenth cen-

tury; Frobisher thrice visited Labrador in the decade

1570-1580; English fishermen were continually in those

 

1 Commentaries upon International Law, Part III, chap. xii, Phila-

delphia, 1854.

• 20
 

The Right of Discovery.                369

 

waters, and yet England allowed those regions to go to

France, who had made more thorough         explorations and

had discovered the Gulf and River St. Lawrence. Spain

discovered the Mississippi in the first half of the sixteenth

century, but she hardly resisted its passage to France, who

had discovered and explored its upper waters, in the sec-

ond half of the seventeenth.

4. A more difficult question than either of these was

the extent of geographical right following discovery and

occupation.  In  the case of an island, unless of great

size, there could arise no question; but it was preposter-

ous to claim that merely touching a great continent at

one or a few points gave a claim to the whole of it.

Neither could the claimant be required to enclose his pur-

chase, after the manner of Dido at Carthage. Obviously

no rule could be formulated that would cover all cases;

even more would depend on circumstances in this case

than in the one last considered. We are on the eve of the

quarto-centennial of the discovery of America; and ques-

tions of boundary which spring out of the original appro-

priations still remain unsettled. Sir H. S. Maine speaks

pointedly of the inadequacy of the Roman rule of res

nullius to meet the case, as shown by the frequent disputes

"on the very two points on which certainty was most re-

quired."   One of these points is "the extent of the terri-

tory that was acquired for his sovereign by the discov-

erer"-the very point we are considering.1  The grand

difficulty was to obtain agreement upon sub-rules, and

 

1"Bentham was so struck with the confusion attending the applica-

tion of the legal principle, that he went out of his way to eulogize the

famous bull of Pope Alexander the Sixth, dividing the undiscovered

countries of the world between the Spaniards and the Portuguese by a

line drawn one hundred leagues west of the Azores; and, grotesque

as his praises may appear at first sight, it may be doubted whether the

arrangement of Pope Alexander is absurder in principle than the

rule of public law, which gave half a continent to the monarch whose

servants had fulfilled the conditions required by Roman jurisprudence

for the acquisition of property, in a valuable object which could be

covered by the hand."--Maine.

Vol. II--24

• 21
 

370   Ohio Archaeological and Historical Quarterly.

then to fit these rules to the facts of history and geogra-

phy. As a result, the more important disputes were re-

ferred to the arbitrament of the sword. A glance at one

of the most famous of them will illustrate the difficulty of

the question.

The Cabots, sailing with an English commission, dis-

covered the eastern shore of North America. This was

the foundation of England's original claim on this con-

tinent. Says Edmund Burke: " We derive our rights in

America from the discovery of Sebastian [John] Cabot,

who first made the northern continent in 1497. The fact

is sufficiently certain to establish the right of our settle-

ment in North America."¹ Perhaps it was not unnatural

that England should claim, not only the coast that the

Cabots had discovered, but all of the country back of it.

At all events, six of her thirteen colonies she bounded

north and south by east and west lines running to the Pa-

cific Ocean. Under some conditions a from-sea-to-sea

rule would answer, but not under those existing in this

case. Possibly its adoption was due to ignorance of dis-

covery, but England insisted on it, and was thus brought

into collision with both France and Spain.

First, the Spaniards had discovered the opposite shore

of the continent, the Gulfs of California and Mexico, and

the Rio Grande and Mississippi Rivers, and so were plant-

ed right in the path of England's westward march. More

than this, the French had discovered the St. Lawrence,

the Great Lakes, and the Upper Mississippi, and also come

into possession, through the lapse of the Spanish title,

of the second of these rivers throughout its whole extent.

Very naturally, France asserted the principle, which is

really more reasonable than the from-sea-to-sea rule, that

the discoverer of a river is entitled to all the country that

it drains. A struggle for the Great West was, therefore,

unavoidable in view of the developments of events.

 

1 Narrative and Critical History of America, III, 1.

• 22
 

The Right of Discovery.          371

When two hostile armies, moving on converging roads,

reach the point of convergence, a battle follows. This

is precisely what happened when the English and the

French met, in the middle of the last century, west of the

Great Mountains. The issue was in one respect a singu-

lar one.  England acquired by the treaty of 1763

the territory immediately in dispute, as well as Can-

ada, and at the same time, by accepting the Mississippi

River as a boundary, she surrendered the from-sea-to-sea

principle.

Here we are dealing with the so-called principle of

"contiguity."  In discussing with Spain the western

limits of the Louisiana purchase, the United States laid

down two rules touching this subject that command the

approval of Sir Robert Phillimore. " The first of these is,

that when any European nation takes possession of any

extent of sea-coast, that possession is understood as ex-

tending into the interior country, to the sources of the

rivers emptying within that coast, to all their branches,

and the country they cover, and to give it a right, in ex-

clusion of all other nations, to the same. . . . The

second is, that whenever one European nation makes a

discovery and takes possession of any portion of that con-

tinent, and another afterwards does the same at some dis-

tance from it, where the boundary between them is not

determined by the principle above mentioned, the middle

distance becomes such of course."1

Dr. Lieber says discovery, in the modern sense, means

that "the government of a man who discovers an un-

owned (or nearly unowned) land can fairly claim it as

standing under its sovereignty, if it can and does estab-

lish its manifest protection and influence, and as far as it

establishes this weight and influence;" whereas "discov-

ery in the Spanish sense of the word meant the first visit

of a Catholic to an island or country not peopled at all, or

 

1 International Law, Part III, Chap. XII.

• 23
 

372   Ohio Archaeological and Historical Quarterly.

 

peopled by non-Christians, whom it was perfectly fair to

conquer or subdue by any means."1    But this Spanish

method of procedure sprang rather from the principle of

the Papal donation than from the Right of Discovery.

5. According to Roman law, nobody's property did not

become somebody's unless taken possession of with that

intent; and in certain cases this intent must be manifested

by some special acts.  Naturally, therefore, in an age pre-

eminently  ceremonial, somewhat elaborate forms were

commonly employed when a navigator took possession

of a new land. Of course, something was left to time,

place, and the taste of the principal actor, but these

formalities seem to have been considered essential by

Spanish, English, French, and Dutch alike;    "A  loud

proclamation, before God and man, of the deed then and

there consummated.   This proclamation was made with

drawn sword, by the commander of the party taking pos-

session, and sometimes attended by the throwing of earth

toward the four cardinal points, as was common, and is

now in Spanish America, in giving judicial possession in

granting  lands, and planting the royal standard.   All

present were called upon to witness the act, which was

done for and in the name of the sovereign authority

recognized by the party.  Then the notary, or, if none

were present, a clerk, or a person or persons appointed to

act as such, took down in writing what had been done,

and each member of the party signed it. "2 But the age

was religious as well as ceremonial, and religious rites

were incorporated with the civil forms.    Moreover, a

cross reared on an island or coast would be evidence that

it had been visited and appropriated by a Christian navi-

gator.  The cross, the mass, and prayer were conspicuous

features on these occasions.  At San Salvador, Columbus,

clad in shining vestments, bearing a drawn sword, caused

 

1 Miscellaneous Writings, II, 26.

2 H. H. Bancroft: Central America, I, 371, note.

• 24
 

The Right of Discovery.              373

 

a cross to be erected while he repeated in Latin a prayer

that he is said always to have used on such occasions.

"O, Lord, Eternal and Omnipotent God, who hast created

by Thy sacred word Heaven, the earth, and the sea,

blessed and glorified be Thy name; praised be Thy maj-

esty, that is worthy by Thy humble servant that its sacred

name shall be made known and proclaimed in this other

part of the world." John Cabot raised on the shore of

North America crosses surmounted by the flag of Eng-

land and the banner of St. Mark, and Cartier raised

crosses crowned with the fleur de lis on the shores of the

Gulf and River St. Lawrence. St. Lusson stood near a

cross at the Sault Ste. Marie when he took possession of

the Great Lakes in the name of the redoubtable Monarch

Louis XIV of France, as did La Salle when, at the mouth

of the Mississippi, he took possession, in the same name,

of the vast region that the Mississippi drains. Balboa

brandished in one hand a sword, and in the other a ban-

ner bearing on one side the arms of Castile and Leon, and

on the other the Virgin and Child, when, at the Isthmus,

he rushed into the waters of the Pacific and delivered to

that ocean the grandiloquent speech in which he took

possession of its four corners in the name of the Spanish

princes.

6. While the Right of Discovery, as it took its place

in public law, was merely a rule of appropriation binding

upon the maritime powers, it carried with it the right to

deal with the native occupants of the soil as each power

saw fit. Chief Justice Marshall thus lays down the law

in  Johnson v. Mcintosh: "Those relations which were

to exist between the discoverer and the natives were to be

regulated by themselves. The rights thus acquired being

 

1 H. H. Bancroft: Central America, I, 370. The lengthy proces verbal

executed by St. Lusson at the Sault, and by La Salle at the mouth of

the Mississippi, are found in the Wisconsin Historical Collections, XI.

Parkman gives animated descriptions of these transactions. La Salle

and the Discovery of the Great West, 47 seq. arid 285 seq.

• 25
 

374   Ohio Archaeological and Historical Quarterly.

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 disre-

garded, but were necessarily, to a considerable extent,

impaired. They were admitted to be the original occu-

pants of the soil, with a legal, as well as a just claim to

retain possession of it, and to use it according to their

own discretion; but their right to complete sovereignty,

as independent nations, was necessarily diminished, and

their power to dispose of the soil as their own to whomso-

ever 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 right to be in themselves; and claimed and exer-

cised, as a consequence of this ultimate dominion, a power

to grant the soil while yet in 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." These propositions are asserted over and

over again by text-writers and by courts. Mr. Washburn

says none of the Christian nations that planted colonies

in America recognized a seizin of lands on the part of

the Indians dwelling upon them, and that they all held

an Indian's deed to be simply an extinguishment of

his claim, that did not pass the soil or free-hold. "In

none of the English patents making grants of the

country is the Indian title excepted."¹ Chancellor Kent

declares it a settled and fundamental doctrine with us,

"that all valid individual titles to land within the United

States are derived from the grant of our local govern-

ment, or from that of the United States, or from the

crown, or royal charter of government established here

prior to the Revolution."² This proposition needs some

 

1 Washburn:  Law of Real Property, III, 182 Boston, 1876.

2 Kent discusses this question in his Commentaries, lect. 51.

• 26
 

The Right of Discovery.          375

modification in the case of territories acquired from

France, Spain, and Mexico. The Chancellor further

asserts that discovery carried with it the exclusive right

to extinguish the Indian title by purchase or conquest,

to grant the soil, and to exercise such a degree of sover-

eignty as circumstances required. "The royal grants

and charters asserted titles against Europeans only, and

were blank paper so far as the natives were concerned. In

that regard, the right conveyed by discovery was merely

an exclusive and absolute pre-emption of the soil." So

thoroughly has this principle been carried out, that there

is not an Indian in the United States who holds the soil

on which he lives, his farm, if he has one, his interest in

the reservation on which he lives, if in tribal relations, by an

original Indian title. The Indian land-owner, as well as

the white one, holds ultimately by right of discovery !

How the powers that acquired territorial rights in

North America used their right of exclusive and abso-

lute pre-emption, is an old and well-worn story. The in-

human cruelty of the Spaniards, in particular, can never

exhaust the eloquence of denunciation. But it does not

appear that any person who played a part in those trans-

actions ever thought of regarding the red men as absolute

proprietors; not even the admirable Williams in Rhode

Island, the excellent Colvert in Maryland, or the philan-

thropic Penn in Pennsylvania. Penn's considerate treat-

ment of the Indians marks him a man of advanced ideas

and humane sentiments. Penn, however, did not first

visit these Indians and obtain their consent to plant a

colony among them, but, rather, first sent two thousand

settlers to the banks of the Delaware and then met them

in council under the elm at Shackamaxon.

7. The facts now presented suggest an answer to the

question, Why the Christian powers rested their claims on

discovery, and not on conquest. As we have seen, the

right conveyed by discovery was merely an exclusive and

• 27
 

376    Ohio Archaeological and Historical Quarterly.

absolute pre-emption of the soil, but such pre-emption,

even when limited by occupancy, would, for the time,

reach much farther than conquest. Spain set an example

by claiming at first, under the Pope's donation, all Amer-

ica, and when compelled to abandon that ground and to

rest her rights on discovery, she still claimed that the

casual visit of a Spanish navigator to a heathen land gave

her the right to it. The from-sea-to-sea principle, as as-

serted by England, was of a similar nature. It has been

common to explain the grants of land extending from

ocean to ocean, made by James I and Charles II, to cer-

tain of the English colonies, by referring them to igno-

rance of geography; but a committee of the Continental

Congress, reporting on the claims of the United States,

August 16, 1782, suggested that their majesties' "princi-

pal object at that time was to acquire by that of occupancy

which originated in this western world, to-wit, by charters,

a title of the lands comprehended therein against foreign

powers."¹ Of course, this is mere paper occupancy, but

it is not improbable that we have here the explanation

of the from-sea-to-sea charters. Discovery was then con-

sidered merely a pre-emption of the right to dispossess the

savages by purchase or the sword, at the option of the

pre-emptor; but this right, even when limited by what

is called "occupancy," still gave the pre-emptor certain ad-

vantages over the conqueror. Moreover, to claim by dis-

covery was more dignified than to claim by conquest,

since the latter would be a recognition of the savages as

enemies. Discovery, too, was much more in accord with

the ecclesiastical ideas of the time.

8. Writers on law and morals have not failed to go be-

hind the Right of Discovery and the ideas in which it

originated, to find warrant for the European powers tak-

ing possession of the New World. Chancellor Kent says

1Secret Journals of the Acts and Proceedings of Congress, III, 177.

Boston, 1821.

• 28
 

The Right of Discovery.                 377

 

it was "part of the original destiny of the human race to

subdue the earth, and till the ground from       whence they

were taken;" and this principle, so he argues, gave the

Europeans, who were measurably fulfilling this destiny,

the right to the lands occupied by the Indians, who were

not fulfilling it, subject to proper limitations and restric-

tions.1  Vattel argues that the unsettled habitations of

the Indians in the immense regions of America " can not

be accounted a true and legal possession; and the people

of Europe, too closely pent up at home, finding land of

which   the savages stood    in no particular need, and of

which they made no actual and constant use, were law-

fully entitled to take possession of it and settle it with

colonies." 2  This view, however, he urges only to the

extent of confining the Indians within narrower limits;

and he praises the Puritans of New England and William

Penn for their moderation and humanity in dealing with

the savages.   It is a striking proof of the extent to which

politics have become secularized that the jurists and mor-

alists of the modern period who have discussed this sub-

ject say not a word about religion which was so promi-

nent in such discussions three or four hundred years ago.

The argument now is, the civilized man has a right to

dispossess the savage, not the Christian the infidel.

9. From the time of the French and Indian war Eng-

land showed a disposition to abandon her earlier ground

of title in North America. In the dispute with France as

to the ownership of the Ohio Valley, just before that war

began, she said little of the Cabots' discoveries, but much

1Computations of the amount of land required to support an Indian

family in the Indian way range from 6,000 acres to 50,000 acres. One

authority says a single Indian requires a number of square miles for

his subsistence equal to the number of whites that can subsist on one

square mile. At the present time the Indian reservations set apart by

the Government of the United States amount to 150,000,000 acres.

while the Indians are estimated at 262,000 souls.-Ellis: The Red Man

and the White Man, 244. Boston, 1882.

2 The Law of Nations, I, xviii, 209.

• 29
 

378 Ohio Archaeological and Historical Quarterly.

of her treaties with the Iroquois Indians, and of the

French concession in the Treaty of Utrecht that the Five

Nations were allies and subjects of Great Britain. That

war over, England wholly abandoned the from-sea-to-sea

charters, and undertook to limit her colonies by the Alle-

ghany Mountains; and when treating with the Americans

at Paris, in 1782, she denied that the States had

any territorial rights beyond that limit, on the ground

that the colonies had never extended beyond it. More

than this, some English authorities denied, in the period

preceding the Revolution, that England ever held the

shore colonies by discovery, and set up conquest in its

room. Blackstone, for example, holds that the English

plantations were, principally, conquered or ceded coun-

tries having been obtained in the seventeenth century,

either by driving out the natives or by treaties with them.

This view was essential to Blackstone's theory of the Amer-

ican colonies. The law of England recognized two classes

of colonies; those that were planted in desert and unculti-

vated regions by emigrants from the Mother Country, and

those that were acquired by conquest or by treaty cession.

In the first of these classes, the common law was of im-

mediate force and application, so far as it was applicable,

while in the second class it had no force whatever, but

these colonies were immediately subject to Parliament.

Blackstone lectured at Oxford as the contest between the

Mother Country and the Colonies was drawing on; he

favored the pretensions of the Crown and Parliament, and

his anxiety to reach his conclusion not improbably led to

the assumption of his premise. His conclusion is: "And

therefore the common law of England, as such, has no

allowance or authority there; they being no part of the

Mother Country, but distinct, though dependent domin-

ions."¹ Mr. Justice Story refutes the English jurist at

length, showing that he abandons the earlier ground occu-

 

1 Commentaries, I, 108.

• 30
 

The Right of Discovery.           379

pied by the English Government, and that his premise is

at variance with all the precedents.¹ He declares that

"there is not a single grant from the British crown from

the earliest of Elizabeth down to the last of George the

II, that affects to look to any title except that founded

on discovery. Conquest or cession is not once alluded to.

And it is impossible that it should have been; for, at the

time when all the leading grants were respectively made,

there had not been any conquest or cession from the

natives of the territory comprehended in those grants."

Even the grant of New Netherlands, made by Charles II

to his brother, James Duke of York, in 1664, Story points

out, was based on the original English claim to the coast,

growing out of the Cabot discoveries. From the time that

the Dutch established themselves at the mouth of the Hud-

son until the ultimate incorporation of their plantation in

the British-American dominions, the English always re-

garded them as intruders whom they had a perfect right

to expel or subdue. And it was the exercise of this right

that gave to England the country from the Connecticut to

the Delaware River.

B. A. HINSDALE, PH. D.

 

1 Commentaries on the Constitution, I, 151, 158.

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