THOMAS] RIGHT TO SOIL DEPENDENT ON DISCOVERY 531 



quished .all claim, not only to the government, bnt to the "propriety and terri- 

 torial rights of the United States," whose lionndaries 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 declar- 

 ation of independence, nor the tre.aty 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 ill! the lands within the boundary lines described in the tre.aty, 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. 



That this rule bas been adopted also by tbe Uuited States is asserted 

 by the Supreme Court iu the saiii6 opiniou: 



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 iiurchase or by conquest ; and gave also a right to such a degree 

 of sovereignty as the circumstances of the jieople would allow them to exercise. 



The power now possessed by the Government of the United States to grant lands 

 resided, while we were colonies, iu the crown or its grantees. The validity of the 

 titles given by either has never been questioned in our courts. It has been exer- 

 cised uniformly over territory in possession of tlie Indians. The existence of this 

 power must negative the existence of any right which may conflict with, and con- 

 trol it. An absolute title to lands can not exist, at the same time, in different per- 

 sons, or in different governments. An absolute, must be an exclusive title, or at least 

 a title which excludes all others not compatible with it. AH our institntions recog- 

 nize the absolute title of the crown, subject ouly to the Indian right of oicupancy, 

 and recognized 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 euter into the controversy, whether agriculturists, merchants, and 

 manufacturers, have a right, on abstract principles, to expel hunters from the terri- 

 tory they possess, or to contract their limits. Conquest gives a title which the 

 courts of the conqueror can not deny, whatever the private and speculative ojiinions 

 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 l)ave passed to the United States, 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 to them. These claims have been maintained and estab- 

 lished 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 defense of those priiici])Ies which 

 Europeans h.ive applied to Indian title, they may, we think, find some excuse, if 

 not justihcatiou, in the chariictcr and habits of the people whose rights have been 

 wrested from them. 



The title by conquest is acquired and maintain(^d by force. The comineror pre- 

 scribes 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 2'eople. Where this incorporation is x>racticable, 



