the settlement of this country by European emigrants, for them to purchase of the natives extensive territorial districts. Such purchases were, however, dictated by policy merely, or with the view of avoiding hostilities; for the purchase made by William Penn, which was among the most remarkable transactions of the kind, was not supposed to augment the title he had acquired by discovery. All the treaties and negotiations, moreover, between the powers of Europe and the American continent, from the treaty of Utrecht, in 1713, to the treaty of Ghent, in 1814, have uniformly recognized the principle just mentioned, and have utterly disregarded the supposed right of the native Indians to the territory within their asserted jurisdictional limits. Those natives were not regarded as forming civil communities, who had that fixed and permanent property in the soil which admits of alienation to private individuals.2 In the elaborately discussed case of De Armas v. Mayor, &c. of New Orleans, it was admitted to be

3

1 Penn v. Lord Baltimore, 1 Ves. R. 445.

2 An. Reg. 56, 223; Niles' Reg. 229; 2 Ruth. Inst. 29; Jefferson's Notes, 126; Smith's Hist. New York, Montesq. Spirit of Laws. Baldwin, J., in Mitchell v. United States (9 Peters, R. 178), said, that purchases made at Indian treaties, under the competent sanction of the government of the United States, vest a valid title in the purchaser, without any patent. This opinion is, however, so contrary to previous authorities on the subject, that "I," says Kent," should apprehend it would be proper for further consideration." 3 Kent, Comm. 378, (note.)

3 De Armas v. Mayor, &c. of New Orleans, 5 Mill. (Louis.) R. 132.

uniformly the practice of all European nations having colonial establishments and dominion in America, to consider the unappropriated lands occupied by savages, and obtained from them by conquest or purchase, to be crown lands, and capable of a valid alienation, by sale or gift of the sovereign, and by him only. No valid title could be acquired without letters patent from the king. It was declared by the statute of Connecticut of 1718, that no title to land was valid unless derived from the governor and company of the colony. What, however, is completely decisive in respect to this matter, is the case of Johnson v. M'Intosh, in the supreme court of the United States. In this case the validity and effect of simple Indian grants was very fully discussed, and it was therein deliberately determined, that a title to lands by virtue of grants made by Indian tribes or nations, could not be recognized in the courts of this country." Indian grants have likewise been held in the state of New York, as not affording that color of title which is necessary to create a right by virtue of possession.3

As to the effect then of a recognition and confirmation of Indian grants by the crown, or by a colonial

1 Rev. Stat. of Conn. 1784, p. 113.

2 Johnson v. M'Intosh, 8 Wheat. (U. S.) 511. See likewise Worcester v. State of Georgia, 6 Peters (U. S.) R. 512.

Jackson v. Hudson, 3 Johns. (N. Y.) R. 384; Jackson v. Porter, Paine's (Cir. Co.) R. 457.

legislature deriving political powers, by charter, from the crown.

In the preamble of an act of the general assembly of the colony of Rhode Island, passed at Newport, in May, 1682, it was stated, that whereas in the fifteenth year of Charles II. there was a charter granted to the colony, and that amongst the many privileges granted by it, there was granted to the general assembly of the colony power and authority to make and ordain laws, suiting the nature and constitution of the place; and in particular, "to direct, rule, and order all matters relating to purchases of lands of the native Indians;" and that the general assembly taking into serious consideration, that the lands of the several towns of Newport, Providence, Portsmouth, Warwick and Westerly were purchased (by the inhabitants thereof) of the native Indians, chief sachems of the country, before the granting of the said charter, so that an order or direction from the said assembly could not be obtained therein, and it being found necessary for the reasons aforesaid, that the lands of the aforesaid towns should be by an act of the general assembly, confirmed to the inhabitants thereof, according to their several and respective rights and interest therein; it was therefore enacted, that all the lands lying within the towns mentioned, according to their several respective purchases thereof of the Indian sachems, be "allowed of, ratified, and confirmed to the proprietors of each of the aforesaid

towns, and to each and every of the said proprietors, their several and respective rights and interests therein, by virtue of any such purchase or purchases as aforesaid; to have and to hold all the aforesaid lands, by virtue of the several purchases thereof, with all the appurtenances, privileges and commodities thereunto belonging, or anywise appertaining, to them the said proprietors, their heirs and assigns forever, in as full, large, and ample a manner to all intents, constructions and purposes whatsoever, as if the said lands, and every part thereof, had been purchased of the Indian sachems, by virtue of any grants or allowance obtained from the general assembly of this colony, after the granting of the aforesaid charter." 1

No construction of the ratification and confirmation of Indian grants as above set forth, can be given, consistently with the opinion of the majority

"Acts and Laws of His Majesty's Colony of Rhode Island and Providence Plantations, in America," p. 35. This was the first printed edition of the Rhode Island Laws. It was printed in 1719, and contains the acts of the general assembly, beginning with the March session 1663, and ending with the May session, 1718. In the same volume, p. 45, there is the following act, of 1700, entitled, “an act for putting in force the Laws of England," viz. —"That in all actions, matters, causes and things whatsoever, where no particular law of this colony is made to decide and determine the same; that then, and in all such cases, the laws of England shall be put in force to issue, determine and decide the same: Any usage, custom or law to the contrary hereof notwithstanding." (Passed at Newport, 30th April, 1700).

of the court in Martin v. Waddell,' other, than that the grantees should be entitled to the territory granted, agreeably to the common law of England; that is, that their title in the soil extended only to highwater mark.

On the application of the proprietors and inhabitants of the town of New Haven, in Connecticut, for a patent of the confirmation of the lands, with their appurtenances, within certain boundaries particularly specified, which they had obtained by purchase of the Indian native proprietors, and whereof they had stood seised and been in quiet possession for many years without interruption, the general assembly of the colony of Connecticut, in 1685, for a more full confirmation of the premises unto the said proprietors and inhabitants of the town of New Haven, in their rightful possession and enjoyment of the same, ratified and confirmed unto them, the premises so butted and bounded with all the meadows, &c., and with all ports, rivers, fishings, &c., on or within the premises, and all other commodities, privileges, franchises, and hereditaments whatsoever thereunto belonging, or in any ways appertaining to any part or parcel thereof. Within the boundaries of the premises was an arm of the sea called "Dragon" river, navigable for large vessels. It was held, that this was not only a confirmation, but a grant of

2 Martin v. Waddell, 16 Peters (U. S.) 367; App. p. xli.