CHAPTER XXI.

Public Lands Title thereto-Proclamation of George III.-Ejectment to recover-Case of Johnson and others-Chief-Justice Marshall's opinion-Lands not a source of profit to the nation-Real Estate the worst property a nation can own-Distribution, etc.-The question considered-Its corrupting tendency.

THE title of the inhabitants of Illinois to its soil, is the same as in the other States of the American Republic, except in one particular, which we shall mention hereafter.

We have already spoken of a proclamation issued by George III., soon after the cession of this country to England, in 1763; and of an Indian grant of two tracts of land, made to William Murray and others, in violation of its provisions, (chapter xi. page 211,) the consideration of which, is said to have been twenty-four thousand dollars and upward. On the 18th of October, 1775, Tabac, and certain other chiefs of the Piankeshaw tribe, at Vincennes, executed another deed, in contravention also of said proclamation, to Louis Viviat, for himself and the Honorable John Earl of Dunmore, at that time Governor of Virginia under the crown, his son John Murray, Thomas Johnson, William Murray, one of the grantees in the former deed, and others, of an extensive tract of land upon the Wabash, in consideration of thirty-one thousand dollars, and upward, paid to said chiefs. The above deeds embrace a large portion of the State of Illinois, (the city of Chicago, among the rest,) and were pronounced by some of the ablest lawyers in England (Lord Camden, among others,) to be good and valid deeds. The question having, within a few years, been decided by the supreme court of the United States against the claimants under the above grants; and that decision being the basis upon which our titles to the houses and lands we occupy altogether depends, an abstract of the case cannot fail to interest some portion of our readers."

Johnson, the son and devisee of Thomas Johnson, one of the grantees in the deed executed on the 18th of October, 1775, by the Piankeshaw tribe of Indians, before referred to, brought an action of ejectment against McIntosh in the district court of this State, to recover a tract of land in the State and district of Illinois.

The defendant, McIntosh, claimed under a patent from the United

*Those wishing for more information upon the subject, will find it reported in viii. Wheaton's Reports, 543.

States, and the question to be determined was, whether a prior deed, executed by the Piankeshaw Indians in 1775, in contravention of the proclamation of the King of England, was paramount to a subsequent deed from the same tribe to the United States, and a patent from the latter to the defendant.

It will be seen at once that the question was one of magnitude, not so much on account of the property at stake in this suit, as on account of the principle involved in its decision. It was argued by Messrs. Harper and Webster for the plaintiff, and Messrs. Winder and Murray for the defendant; and the judgment of the court below (which had been rendered for the defendant,) was affirmed.

The opinion of the supreme court, given by Chief Justice Marshall, on that occasion, having "defined our position" in relation to Indian titles with great accuracy, those titles being traced therein back to their source, and the reason for their validity given, we shall attempt nothing more than a brief abstract of the opinion of that eminent jurist.

On the discovery of this country by Columbus, the maritime states of Europe, stimulated by the love of glory, and still more by the hope of gain and the prospect of dominion, embarked in several adventurous enterprises, the objects of which were to found colonies-to search for the precious metals-and to exchange the products and manufactures of the old world, for what was valuable and attractive in the new. England, (with the exception of Spain,) was in advance of her continental neighbors. During that period, "the right of discovery" received a universal acquiescence—became the basis of European policy, and regulated the exercise of sovereignty on this side of the Atlantic. Of this fact there is no doubt; the history of that period furnishes, not only uniform, but conclusive evidence of its truth.

In respect to inhabited lands, no important objection can be raised against it; but in respect to countries occupied by the natives, (even sav. ages,) its correctness and humanity are not equally apparent.

The Indian tribes inhabiting this vast Continent, claimed an exclusive possession, as sovereign and absolute proprietors of the soil. They acknowledged no obedience, allegiance or subordination, to any foreign power whatever; and so far as they had the means, they have since asserted their right of dominion, and yielded it up only when lost by conquest, or transferred by treaty.

It is needless here to discuss the question, whether civilized man may demand of the savage, for use and occupation, lands overrun only by the latter-not cultivated-because the Saxon race have, in no instance, we believe, claimed jurisdiction, or attempted to expel the latter, except in cases of war, of purchase, and of voluntary cessions.

Although Alexander VI., as we have already stated, by a papal bull, granted the whole Continent to the crown of Castile in 1493, Spain erected her empire in America, upon other and different bases. Portugal sustained her claim to Brazil by "the right of discovery." France predi

cated her title to the vast countries she claimed in America, on the same right. The States of Holland made some acquisitions here, and sustained their right to them on the common principle, at that time adopted in Europe; and no one of the European powers gave its assent to this principle more unequivocally than England.

As early as 1496, the English monarch granted a commission to the Cabots, to discover countries unknown to Christian people; and take possession of them in the name of the King of England. In 1578, a right was given to Sir Humphrey Gilbert to discover, and take possession, of heathen and barbarous lands. This was afterward renewed to Sir Walter Raleigh. In 1606, a charter was granted to Sir Thomas Gates and others, under which the first permanent settlement was made in Virginia; others were issued soon afterward, which purport to convey the soil, as well as the right of dominion, to the grantees; at the time of the execution of these several grants or patents, the whole country was held and occupied by the savages.

The right acquired by discovery, "merely excluded other European nations from the right to acquire a title from the natives ;" and vested in the discoverers "a capacity to extinguish the Indian title, and to perfect their own dominion over the soil, and to dispose of it according to their will and pleasure." This principle of discovery created, of course, a peculiar relation between the original inhabitants and the Europeans; the former were admitted to possess "a present right of occupancy," subordinate, however, to "the ultimate dominion of the discoverer." In a certain sense they were permitted to exercise rights of sovereignty over it; they were permitted to sell or transfer it to the discoverers, and no others; and until such sale, they were generally permitted to occupy it as sovereigns de facto. Europeans claimed, therefore, and exercised, the right to grant the soil while yet in possession of the natives, "subject to their right of occupancy."

The history of America, from its first discovery to the present day, says Chief Justice Marshall, proves, we think, the universal recognition of these principles.

France made grants similar to those of England; and claimed the whole valley of the Mississippi by the right of discovery. According to the European principles, her title was perfect until 1763, at which time Illinois and other states and territories, were ceded to England. By the treaty of peace, at the close of the revolutionary war, in 1783, Great Britain relinquished to the United States all claim, not only to the government, but to the soil, within the limits whose boundaries were fixed in the second article of the treaty. By this treaty, the power of government, and the right to the soil which had previously been in Great Britain, passed definitively to the United States. According to every principle, then, which had obtained in Europe and elsewhere, a clear title to all the lands within the boundary lines described in the treaty, was vested in the United States "subject only to the Indian right of occupancy," and the

exclusive power to extinguish that right, was vested in the Government, which might constitutionally exercise it.

The United States have also, in several instances, acceded to the' broad rule by which its civilized inhabitants hold this country; and have maintained, "that discovery gave an exclusive right to extinguish the Indian title to occupancy, either by purchase or conquest; and gave also a right to such a degree of sovereignty, as the circumstances of the people will allow them to exercise ;" and having since purchased of the several Indian tribes, the whole State of Illinois, and received from the States of New-York, Massachusetts, Virginia, and Connecticut, a release of all their interests under patents from the crown of England, the title seems apparently of record, more satisfactory than almost any state or nation can exhibit of its domain.

By the treaty of Greenville, made and entered into on the 3rd of August, 1795, between General Wayne in behalf of the United States, and the sachems, chiefs, and warriors of the Wyandots, Delawares, Shawnees, Ottawas, Chippeways, Pottawatomies, Miamies, Eel Rivers, Weas, Kickapoos, Piankeshaws, and Kaskaskias, "one piece of land, six miles square at the mouth of the Chicago river, emptying into the southwest end of Lake Michigan, where a fort formerly stood;" one other piece, twelve miles square, at the mouth of the Illinois river; and one other piece, including the old fort at Peoria, near the south end of the Illinois lake on Illinois river, were, among other lands, ceded to the United States.

On the 7th of June, 1803, further cessions were made, by a treaty executed by the Indians at Fort Wayne, where General Harrison acted as commissioner on the part of the United States. Other cessions were afterward made, until the Indian title has become wholly extinguished within the limits of Illinois.

In relation to the morality of such cessions, nothing perhaps need here be said. The treaties which led to these cessions, were conducted, in all probability, as fairly, and probably more so, than any treaties hitherto made between civilized and savage men, in any age or any part of the world. The Indians in Illinois, having first expelled the prior occupants, overran, rather than inhabited, the country they claimed. At no period in its history, did the native population equal its number of square miles. One-half, or one-third of that number, unquestionably exceeds the truth. And, however strange it may seem, notwithstanding its occupation by them for centuries, a single year after their departure has, in every instance, eradicated (with the exception of a few tumuli or tombs,) all traces of their existence. It can hardly be supposed, then, that an all-wise Creator, who designed this world for the benefit of the human race, intended that its fairest portions should have been reserved for a few solitary hunters. Their occupation was war; their subsistence obtained from the forest. "To leave them in possession of the country, was to leave the country a wilderness;" to govern them as a distinct people, was impossible. "The Americans were under the necessity, therefore,

of abandoning the country," and exposing themselves and their families to the perpetual hazard of being massacred, or of enforcing their rights by the sword. "Wars ensued, in which the whites were not, as some pretend, always the aggressors." European policy, numbers and skill, of course prevailed; and as the white population advanced, the Indians receded the country in the neighborhood of the former became unfit for them-the game fled into thicker and more unbroken forests, and the Indians followed." Attempts to civilize and christianize the latter, have frequently been made, in sincerity and zeal, but mostly in vain. Our ancestors, who landed on Plymouth rock, labored unquestionably for their good. Purer and better men than Elliot, or Brainard, have never existed. Many of the Jesuit missionaries, who resorted thither, in character and motives, were irreproachable. Still, nothing, or scarcely nothing, was effected by their exertions. That wrongs, aggravated wrongs, at times have been done the savage, we admit. We admit, also, that attempts for their reformation have, at times, injudiciously been conducted. But that our Government have, in any instance, sought to overwhelm them with undeserved ruin, we deny; and the history of our country bears out the assertion.

The ordinance of 1787, for the government of the United States northwest of the river Ohio, contains the following provision:

"The utmost good faith shall always be observed toward the Indians-their lands and roperty shall never be taken from them without their consent-and in their property, rights and liberty, they never shall be invaded, or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity, shall from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them."

This ordinance, it will be recollected, was passed before our present Constitution was adopted. It is true, that foreign emissaries and domestic traitors, and sometimes the cupidity of white men, have stimulated the savage to deeds of vengeance, and those deeds have recoiled on their own guilty heads. The march, however, of civilization, has been onward; and the conduct of the American nation, and ordinarily of the American people, has been mild and merciful. That sickly humanity, therefore, which attempts to justify the Indian massacre, requires another and dif ferent theatre for its successful exhibition.

Without entering into the controversy, whether agriculturists, merchants and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits, we observe, says Chief Justice Marshall, "that conquest gives a title, which the courts of the conquered cannot deny." The British government was at one time our government. Their rights have passed to the United States. They asserted a title to all the lands occupied by Indians within the chartered limits of the British colonies. It asserted also a limited sovereignty over them, and the exclusive right of extinguishing the title which occupancy gave them. These claims were maintained and estab.