The title to the land in the English-settled colonies in this country has "been granted by the Crown while in the occupation of the Indians. These grants purport to convey the soil as well as the right of dominion to the grantees." * "The magnificent purchase of Louisiana was the purchase from France of a country almost entirely occupied by numerous tribes of Indians who are, in fact, independent. Yet, any attempt of others to intrude into that country would be considered as an aggression which would justify war. Our late acquisitions from Spain are of the same character; and the negotiations which preceded those acquisitions recognize and elucidate the principle which has been received as the foundation of all European title in America. The United States, then, have unequivocally acceded to the great and broad rule by which its civilized inhabitants now hold this country. They hold and assert in themselves the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty as the circumstances of the people would allow them to exercise." Hence a conveyance of title to lands exclusively derived from an Indian tribe northwest of the Ohio in 1773 and 1775 to private persons conveys no title.

Marshall, C.J., Johnson v. McIntosh, 8 Wheat., 543, 579, 587.

The rights of the original inhabitants were not entirely disregarded, but were necessarily, to a considerable extent, impaired. These inhabitants were admitted to be the occupants of the soil; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will was denied by the original fundamental principle that discovery gave exclusive title to those who made it.

Johnson r. McIntosh, 8 Wheat., 543.

So far as respects the Crown to whose authority the States succeeded, no distinction was taken between vacant lands and lands occupied by the Indians. The title, subject only to the right of occupancy by the Indians, was admitted to be in the King, and he could grant the lands away, or reserve them for the Indians.

Ibid.: see United States v. Fernandez, 10 Peters, 303. (See infra 209.)

The English possessions in America were not claimed by right of conquest, but of discovery, and were held by the King, as the representative of the nation, for whose benefit the discovery was made. When the revolution took place, the people of each State, in their sovereign character, acquired the absolute right to all their navigable waters, and the soil with them.

The grant from Charles II to the Duke of York, of the territory which

1

now forms the State of New Jersey, passed to the Duke the soil under the navigable waters as one of the royalties incident to the powers of government, which were also granted, to be held by him in the same manner and for the same purposes as this soil had been previously held by the Crown, and the same is true of the grantees of the Duke. And when these grantees surrendered to the Crown all the powers of gov ernment, the title to the soil passed to the Crown, and at the Revolution became vested in the State of New Jersey.

Martin v. Waddell, 16 Peters, 367.

"How far the mere discovery of a territory which is either unsettled, or settled only by savages, gives a right to it, is a question which neither the law nor the usages of nations has yet definitely settled. The opinions of mankind, upon this point, have undergone very great changes with the progress of knowledge and civilization. Yet it will scarcely be denied that rights acquired by the general consent of civilized nations, even under the erroneous views of an unenlightened age, are protected against the changes of opinion resulting merely from the more liberal, or the more just, views of after times. The right of nations to countries discovered in the sixteenth century is to be determined by the law of nations as understood at that time, and not by the improved and more enlightened opinion of three centuries later."

Mr. Upshur, Sec. of State, to Mr. Everett, Oct. 9, 1843. MSS. Instruc. Great Britain.

"The ground taken by the British Government, that a discovery made by a private individual, in the prosecution of a private enterprise, gives no right, cannot be allowed. There is nothing to support it, either in the reason of the case or in the law and usage of nations. To say the least of it, if a discovery so made confers no right, it prevents any other nation from acquiring a right by subsequent discovery, although made under the authority of Government, and with an express view to that object. In no just acceptation of the term can a country be said to be discovered,' if its existence has been previously ascertained by actual sight. This is a mere question of fact, which a private person can settle as well as a public agent. But be this as it may, Meares himself was but the agent of a private trading company, without any authority whatever from his Government, so that, in this respect, his discovery stands upon no better ground than that of Captain Gray."

Ibid.

"Now, mere lapse of time, independent of legislation or positive agreement, cannot of itself either give or destroy title. It gives title only so far as it creates a presumption, equivalent to proof, that a title exists, derived from higher sources: it destroys title only because it creates a like presumption that, whatever the title may have been, it has been transferred or abandoned. Thus it is merely evidence and

nothing more. It creates a presumption equivalent to full proof. But it differs from proof in this, that proof is conclusive and final, whereas presumption is conclusive only until it is met by counter-proof, or a stronger counter-presumption."

Ibid.

"That continuity furnishes a just foundation for a claim of territory, in connection with those of discovery and occupation, would seem unquestionable. It is admitted by all, that neither of them is limited by the precise spot discovered or occupied. It is evident that, in order to make either available, it must extend at least some distance beyond that actually discovered or occupied; but how far, as an abstract question, is a matter of uncertainty. It is subject, in each case, to be influenced by a variety of considerations. In the case of an island, it has been usually maintained in practice, to extend the claim of discovery or occupancy to the whole; so likewise in the case of a river, it has been usual to extend them to the entire region drained by it, more especially in cases of a discovery and settlement at the mouth; and emphatically so when accompanied by exploration of the river and region through which it flows. Such, it is believed, may be affirmed to be the opinion and practice, in such cases, since the discovery of this continent. How far the claim of continuity may extend in other cases, is less perfectly defined, and can be settled only by reference to the circumstances attending each. When this continent was first discovered, Spain claimed the whole, in virtue of the grant of the Pope; but a claim so extravagant and unreasonable was not acquiesced in by other countries, and could not be long maintained. Other nations, especially England and France, at an early period contested her claim. They fitted out voyages of discovery, and made settlements on the eastern coast of North America. They claimed for their settlements, usually, specific limits along the coasts or bays on which they were founded; and, generally, a region of corresponding width extending across the entire continent to the Pacific Ocean. Such was the character of the limits assigned by England in the charter which she granted to her former colonies, now the United States, when there were no special reasons for varying from it. How strong she regarded her claim to the region conveyed by these charters and extending westward of her settlements, the war between her and France, which was terminated by the treaty of Paris, in 1763, furnishes a striking illustration. That great contest, which ended so gloriously for England, and effected so great and durable a change on this continent, commenced in a conflict between her claims and those of France, resting, on her side, on this very right of continuity, extending westward from her settlements to the Pacific Ocean; and, on the part of France, on the same right, but extending to the region drained by the Mississippi and its waters, on the ground of settlement and exploration. Their respective claims, which led to

the war, first clashed on the river Ohio, the waters of which the col-
onial charters, in their western extension, covered; but which France
had been unquestionably the first to settle and explore. If the rel-
ative strength of these different claims may be tested by the result
of that remarkable contest, that of continuity westward must be pro-
nounced to be the stronger of the two. England has had at least the
advantage of the result, and would seem to be foreclosed against con-
testing the principle, particularly as against us, who contributed so
much to that result, and on whom that contest and her example and
pretensions, from the first settlement of our country, have contributed
to impress it so deeply and indelibly. But the treaty of 1763, which
terminated that memorable and eventful struggle, yielded, as has been
stated, the claim and all the chartered rights of the colonies beyond
the Mississippi. The seventh article establishes that river as the perma-
nent boundary between the possessions of Great Britain and France on
this continent." This treaty, Mr. Calhoun proceeded to argue, trans-
ferred to France the title of Great Britain to the country west of the
Mississippi, which title passed from France to the United States by the
treaty ceding Louisiana. Mr. Calhoun then maintained that Spain's
title to the region west of the Rocky Mountains, based on discovery,
was transferred to the United States, by cession from Spain to France,
and then from France to the United States.

Mr. Calhoun, Sec. of State, to Mr. Pakenham, September 3, 1844, MSS. Notes.
Great Britain; 5 Calhoun's Works, 432.

"Discovery alone is not enough to give dominion and jurisdiction to the sovereign or government of the nation to which the discoverer belongs; such discovery must be followed by possession. All man-" kind,' says that eminent and impartial writer on international law, Vattel, 'have an equal right to things that have not yet fallen into the possession of any one, and those things belong to the person who first takes possession of them. When, therefore, a nation finds a country uninhabited and without an owner, it may lawfully take possession of it; and after it has sufficiently made known its will in this respect, it cannot be deprived of it by another nation.' Thus,' continues the learned author, navigators going on voyages of discovery, furnished with a commission from their sovereign, and meeting with islands or other lands in a desert state, have taken possession of them in the name of their nation, and this title has been usually respected, provided it was soon after followed by a real possession.' (Vattel, Ch. XVIII, page 98, Philadelphia edition, 1849.)"

Mr. Fish, Sec. of State, to Mr. Preston, Dec. 31, 1872. MSS. Notes Hayti. "The fact that the discoveries of an American citizen first revealed the importance of the Congo country seems to justify this Government in claiming a special influence upon the determination of the questions

touching all foreign arrangements for the administration of that region,
especially as to its commerce."

Mr. Frelinghuysen, Sec. of State, Let. to Mr. Chandler, Nov. 22, 1884, MSS. Dom.
Let. Cf. App., Vol. III, § 2.

See further as to Congo and other explorations, infra, § 51.

As to territoriality of rivers, see infra, § 30.

As to title to derelict or unappropriated guano islands, based on discovery, see infra, § 310.

As to title of island to San Juan, Puget Sound, on the northwestern coast, see Mr. Cass, Sec. of State, to Lord Lyons, October 22, 1859, MSS. Notes, Great Britain; as to temporary joint occupancy of same island, see Mr. Trescot, Acting Sec. of State, to Mr. Irvine, August 18, 1860, Id.; House Ex. Doc. No. 77, Thirty-sixth Congress, first session; Senate Ex. Doc. No. 10, Thirty-sixth Congress, first session; Senate Ex. Doc. No. 29, Fortieth Congress, second session. See also 50 Brit. and For. State Papers, 1859-'60, p. 796.

A "Memoir, Historical and Political, on the Northwest Coast of North America and its adjacent territories, illustrated by a map, &c., by Robert Greenhow translator and librarian to the Department of State," 228 pages, is given in Senate Document No. 174, Twenty-sixth Congress, first session.

As to title of Key Verd Island, latitude 22° 15' north, longitude 75° 10′ west from Greenwich, see Senate Reports of Committees No. 280, Thirty-sixth Congress, first session.

III. CONQUERED TERRITORY SUBJECT TO TEMPORARY MILITARY CON

TROL.

§ 3.

By the conquest and military occupation of a portion of the territory of the United States by a public enemy, that portion is to be deemed a foreign country so far as respects our revenue laws.

U. S. v. Rice, 4 Wheat., 246.

The holding of a conquered territory is regarded as a mere military occupation until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed, and the ceded territory becomes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of cession, or on such as its new master shall impose. On such a transfer of territory it has never been held that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are dissolved, and new relations are created between them and the Government which has acquired their territory. The same act which transfers their country transfers the allegiance of those who remain in it; and the law, which may be denominated political, is necessarily changed, although that which regulates the intercourse and general conduct of individuals remains in force until altered by the newly-created power of the state. American Insurance Co. v. Canter, 1 Peters, 511. See infra §§ 187–8.

By the conquest and military occupation of Castine by the British on September 1, 1814, that territory passed under the temporary allegiance