- 财产法(普通法案例教学系列英文教材)
- 郑小军
- 4274字
- 2021-09-17 11:52:18
A.Acquisition by Discovery
Johnson v.M’Intosh
Supreme Court of the United States
21 U.S.(8 Wheat.) 543 (1823)
Error to the District Court of Illinois.This was an action of ejectment for lands in the State and District of Illinois,claimed by the plaintiffs under a purchase and conveyance from the Piankeshaw Indians,and by the defendant,under a [later] grant from the United States.It came up on a case stated,upon which there was a judgment below for the defendant….
MR.CHIEF JUSTICE MARSHALL delivered the opinion of the Court.The plaintiffs in this cause claim the land,in their declaration mentioned,under two grants,purporting to be made,the first in 1773,and the last in 1775,by the chiefs of certain Indian tribes,constituting the Illinois and the Piankeshaw nations; and the question is,whether this title can be recognized in the Courts of the United States?
The facts,as stated in the case agreed,show the authority of the chiefs who executed this conveyance,so far as it could be given by their own people; and likewise show,that the particular tribes for whom these chiefs acted were in rightful possession of the land they sold.The inquiry,therefore,is,in a great measure,confined to the power of Indians to give,and of private individuals to receive,a title which can be sustained in the Courts of this country.
As the right of society,to prescribe those rules by which property may be acquired and preserved is not,and cannot be drawn into question; as the title to lands,especially,is and must be admitted to depend entirely on the law of the nation in which they lie; it will be necessary,in pursuing this inquiry,to examine,not singly those principles of abstract justice,which the Creator of all things has impressed on the mind of his creature man,and which are admitted to regulate,in a great degree,the rights of civilized nations,whose perfect independence is acknowledged; but those principles also which our own government has adopted in the particular case,and given us as the rule for our decision.
On the discovery of this immense continent,the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire.Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy.The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new,by bestowing on them civilization and Christianity,in exchange for unlimited independence.But,as they were all in pursuit of nearly the same object,it was necessary,in order to avoid conflicting settlements,and consequent 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 be consummated by possession.
The exclusion of all other Europeans,necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives,and establishing settlements upon it.It was with which no Europeans could interfere.It was a right which all asserted for themselves,and to the assertion of which,by others,all assented.
Those relations which were to exist between the discoverer and the natives,were to be regulated by themselves.The rights thus acquired being exclusive,no other power could interpose between them.
In the establishment of these relations,the rights of the original inhabitants were,in no instance,entirely disregarded; but were necessarily,to a considerable extent,impaired.They were admitted to be the rightful occupants of the soil,with a legal as well as just claim to retain possession of it,and to use it according to their own discretion,but their rights to complete sovereignty,as independent nations,were necessarily diminished,and their power to dispose of the soil at their own will,to whomsoever they please,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 dominion to be in themselves; and claimed and exercised,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.
The history of America,from its discovery to the present day,proves,we think,the universal recognition of these principles.
Spain did not rest her title solely on the grant of the Pope.Her discussions respecting boundary,with France,with Great Britain,and with the United States,all show that she placed it on the rights given by discovery.Portugal sustained her claim to the Brazils by the same title.
France,also,founded her title to the vast territories she claimed in America on discovery.However conciliatory her conduct to the natives may have been,she still asserted her right of dominion over a great extent of country not actually settled by Frenchmen,and her exclusive right to acquire and dispose of the soil which remained in the occupation of Indians….
The States of Holland also made acquisitions in America,and sustained their right on the common principle adopted by all Europe….
The claim of the Dutch was always contested by the English; not because they questioned the title given by discovery,but because they insisted on being themselves the rightful claimants under that title.Their pretensions were finally decided by the sword.
No one of the powers of Europe gave its full assent to this principle,more unequivocally than England.The documents upon this subject are ample and complete.So early as the year 1496,her monarch granted a commission to the Cabots,to discover countries then unknown to Christian people,and to take possession of them in the name of the King of England.Two years afterwards,Cabot proceeded on this voyage,and discovered the continent of North America,along which he sailed as far south as Virginia.To this discovery the English trace their title.
In this first effort made by the English government to acquire territory on this continent,we perceive a complete recognition of the principle which has been mentioned.The right of discovery given by this commission,is confined to countries “then unknown to all Christian people”; and of these countries Cabot was empowered to take possession in the name of the King of England.Thus asserting a right to take possession,notwithstanding the occupancy of the natives,who were heathens,and,at the same time,admitting the prior title of any Christian people who may have made a previous discovery.
The same principle continued to be recognised.[Discussion of English charters granting lands in America omitted.]
Thus has our whole country 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.In those governments which were denominated royal,where the right to the soil was not vested in individuals,but remained in the crown,or was vested in the colonial government,the King claimed and exercised the right of granting lands,and of dismembering the government at his will.The grants made out of the two original colonies,after the resumption of their charters by the crown,are examples of this.The governments of New-England,New-York,New-Jersey,Pennsylvania,Maryland,and a part of Carolina,were thus created.In all of them,the soil,at the time the grants were made,was occupied by the Indians.Yet almost every title within those governments is dependent on these grants.In some instances,the soil was conveyed by the crown unaccompanied by the powers of government,as in the case of the northern neck of Virginia.It has never been objected to this,or to any other similar grant,that the title as well as possession was in the Indians when it was made,and that it passed nothing on that account.
These various patents cannot be considered as nullities; nor can they be limited to a mere grant of the powers of government.A charter intended to convey political power only,would never contain words expressly granting the land,the soil,and the waters.Some of them purport to convey the soil alone; and in those cases in which the powers of government,as well as the soil,are conveyed to individuals,the crown has always acknowledged itself to be bound by the grant.Though the power to dismember regal governments was asserted and exercised,the power to dismember proprietary government was not claimed; and,in some instances,even after the powers of government were revested in the crown,the title of the proprietors to the soil was respected….
Further proofs of the extent to which this principle has been recognised,will be found in the history of the wars,negotiations,and treaties,which the different nations,claiming territory in America,have carried on,and held with each other….
Thus,all the nations of Europe,who have acquired territory on this continent,have asserted in themselves,and have recognised in others,the exclusive right of the discoverer to appropriate the lands occupied by the Indians.Have the American States rejected or adopted this principle?
By the treaty which concluded the war of our revolution,Great Britain relinquished all claim,not only to the government,but to the “propriety and territorial rights of the United States”,whose boundaries were fixed in the second article.By this treaty,the powers of government,and the right to soil,which had previously been in Great Britain,passed definitively to these States.We had before taken possession of them,by declaring independence; but neither the declaration of independence,nor the treaty confirming it,could give us more than that which we before possessed,or to which Great Britain was before entitled.It has never been doubted,that either the United States,or the several States,had a clear title to all the lands within the boundary lines described in the treaty,subject only to the Indian right of occupancy,and that the exclusive power to extinguish that right,was vested in that government which might constitutionally exercise it.
Virginia,particularly,within whose chartered limits the land in controversy lay,passed an act,in the year 1779,declaring her
Exclusive right of pre-emption from the Indians,of all the lands within the limits of her own chartered territory,and that no person or persons whatsoever,have,or ever had,a right to purchase any lands within the same,from any Indian nation,except only persons duly authorized to make such purchase; formerly for the use and benefit of the colony,and lately for the Commonwealth.
The act then proceeds to annul all deeds made by Indians to individuals,for the private use of the purchasers.
Without ascribing to this act the power of annulling vested rights,or admitting it to countervail the testimony furnished by the marginal note opposite to the title of the law,forbidding purchases from the Indians,in the revisals of the Virginia statutes,stating that law to be repealed,it may safely be considered as an unequivocal affirmance,on the part of Virginia,of the broad principle which had always been maintained,that the exclusive right to purchase from the Indians resided in the government.
In pursuance of the same idea,Virginia proceeded,at the same session,to open her land office,for the sale of that country which now constitutes Kentucky,a country,every acre of which was then claimed and possessed by Indians,who maintained their title with as much persevering courage as was ever manifested by any people.
The States,having within their chartered limits different portions of territory covered by Indians,ceded that territory,generally,to the United States,on conditions expressed in their deeds of cession,which demonstrate the opinion,that they ceded the soil as well as jurisdiction,and that in doing so,they granted a productive fund to the government of the Union.The lands in controversy lay within the chartered limits of Virginia,and were ceded with the whole country northwest of the river Ohio.This grant contained reservations and stipulations,which could only be made by the owners of the soil; and concluded with a stipulation,that “all the lands in the ceded territory,not reserved,should be considered as a common fund,for the use and benefit of such of the United States as have become,or shall become,members of the confederation,” &c.“according to their usual respective proportions in the general charge and expenditure,and shall be faithfully and bona fide disposed of for that purpose,and for no other use or purpose whatsoever.”
The ceded territory was occupied by numerous and warlike tribes of Indians; but the exclusive right of the United States to extinguish their title,and to grant the soil,has never,we believe,been doubted….
Our late acquisitions from Spain are of the same character; and the negotiations which preceded those acquisitions,recognise 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 that 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.
The power now possessed by the government of the United States to grant lands,resided,while we were colonies,in the crown,or its grantees.The validity of the titles given by either has never been questioned in our Courts.It has been exercised uniformly over territory in possession of the Indians.The existence of this power must negative the existence of any right which may conflict with,and control it.An absolute title to lands cannot exist,at the same time,in different persons,or in different governments.An absolute,must be an exclusive title,or at least a title which excludes all others not compatible with it.All our institutions recognise the absolute title of the crown,subject only to the Indian right of occupancy,and recognise the absolute title of the crown to extinguish that right.This is incompatible with an absolute and complete title in the Indians.
We will not enter 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.Conquest gives a title which the Courts of the conqueror cannot deny,whatever the private and speculative opinions of individuals may be,respecting the original justice of the claim which has been successfully asserted.The British government,which was then our government,and whose rights have passed to the United States,asserted 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 to them.These claims have been maintained and established as far west as the river Mississippi,by the sword.The title to a vast portion of the lands we now hold,originates in them.It is not for the Courts of this country to question the validity of this title,or to sustain one which is incompatible with it.
Although we do not mean to engage in the defence of those principles which Europeans have applied to Indian title,they may,we think,find some excuse,if not justification,in the character and habits of the people whose rights have been wrested from them.
The title by conquest is acquired and maintained by force.The conqueror prescribes its limits.Humanity,however,acting on public opinion,has established,as a general rule,that the conquered shall not be wantonly oppressed,and that their condition shall remain as eligible as is compatible with the objects of the conquest.Most usually,they are incorporated with the victorious nation,and become subjects or citizens of the government with which they are connected.The new and old members of the society mingle with each other; the distinction between them is gradually lost,and they make one people.Where this incorporation is practicable,humanity demands,and a wise policy requires,that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old,and that confidence in their security should gradually banish the painful sense of being separated from their ancient connexions,and united by force to strangers.
When the conquest is complete,and the conquered inhabitants can be blended with the conquerors,or safely governed as a distinct people,public opinion,which not even the conqueror can disregard,imposes these restraints upon him; and he cannot neglect them without injury to his fame,and hazard to his power.
But the tribes of Indians inhabiting this country were fierce savages,whose occupation was war,and whose subsistence was drawn chiefly from the forest.To leave them in possession of their country,was to leave the country a wilderness; to govern them as a distinct people,was impossible,because they were as brave and as high spirited as they were fierce,and were ready to repel by arms every attempt on their independence.
What was the inevitable consequence of this state of things? The Europeans were under the necessity either of abandoning the country,and relinquishing their pompous claims to it,or of enforcing those claims by the sword,and by the adoption of principles adapted to the condition of a people with whom it was impossible to mix,and who could not be governed as a distinct society,or of remaining in their neighbourhood,and exposing themselves and their families to the perpetual hazard of being massacred.
Frequent and bloody wars,in which the whites were not always the aggressors,unavoidably ensued.European policy,numbers,and skill,prevailed.As the white population advanced,that of the Indians necessarily receded.The country in the immediate neighbourhood of agriculturists became unfit for them.The game fled into thicker and more unbroken forests,and the Indians followed.The soil,to which the crown originally claimed title,being no longer occupied by its ancient inhabitants,was parcelled out according to the will of the sovereign power,and taken possession of by persons who claimed immediately from the crown,or mediately,through its grantees or deputies.
That law which regulates,and ought to regulate in general,the relations between the conqueror and conquered,was incapable of application to a people under such circumstances.The resort to some new and different rule,better adapted to the actual state of things,was unavoidable.Every rule which can be suggested will be found to be attended with great difficulty.
However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance,and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it,it becomes the law of the land,and cannot be questioned.So,too,with respect to the concomitant principle,that the Indian inhabitants are to be considered merely as occupants,to be protected,indeed,while in peace,in the possession of their lands,but to be deemed incapable of transferring the absolute title to others.However this restriction may be opposed to natural right,and to the usages of civilized nations,yet,if it be indispensable to that system under which the country has been settled,and be adapted to the actual condition of the two peoples,it may,perhaps,be supported by reason,and certainly cannot be rejected by Courts of justice.
… …
It has never been contended,that the Indian title amounted to nothing.Their right of possession has never been questioned.The claim of government extends to the complete ultimate title,charged with this right of possession,and to the exclusive power of acquiring that right….
After bestowing on this subject a degree of attention which was more required by the magnitude of the interest in litigation,and the able and elaborate arguments of the bar,than by its intrinsic difficulty,the Court is decidedly of opinion,that the plaintiffs do not exhibit a title which can be sustained in the Courts of the United States; and that there is no error in the judgment which was rendered against them in the District Court of Illinois.
Judgment affirmed,with costs.
Notes:
1.The case of Johnson v.M’Intosh is an unusual document in both intellectual and technological terms which dealt with a critical moment in the history of Indian law in particular and American land claims in general.Although land claims and Indian property had been the subject of numerous cases before state courts and endless conversation in the state and federal government,Johnson v.M’Intosh presented the Supreme Court with its first case to consider these issues together.The result was a decision with a profound impact on the way Americans claimed property and the way the American government treated Indians.
2.What is the “Discovery Doctrine” in acquiring title in the new world as a generally accepted law among the European powers? Namely,what are the basic elements in establishing rights under discovery?
3.What does “title” mean in the Discovery Doctrine? To be specific,what powers did the Europeans have under the title?
4.Why discovery gives superior right over the original (Indian) inhabitants,according to Marshall?
5.What are the differences between“rights”,“possession”,“title,” and “occupancy” in terms of property?
6.Johnson v.M’Intosh has been called a“great case” that has guided American Indian policies in the next two hundred years.The subject matter involved was not just a track of land; it was a huge track of land,almost half the size of today’s Illinois.(See map).
7.Where does the concept of conquest come into play? What is the connection between discovery and conquest,and for what purpose it is discussed in Johnson v.M’Intosh?
8.What is the rationale for the Court to rule in favor of the defendant in Johnson v.M’Intosh? How did Justice Marshall justify his decision?
9.John Marshal (1755 ~ 1835),American jurist,Secretary of State under Jackson(2nd U.S.President),and Chief Justice of the United States Supreme Court.Many of the decisions for which he wrote the opinions were landmark cases that formed part of the constitutional law of the early United States.
John Marshall
Chief Justice of the U.S.,1804