THOMAS] RIGHT TO SOIL DEPENDENT ON DISCOVERY 529 



complete sovereignty, ;is independent nations, were uecussarily diminished, and their 

 power to dispose of the soil at their own will, to whomsoever they pleased, was denied 

 by the original fnndiimental principle that discovery gave exclnsive title to those 

 who made it. 



While the ditt'erent nations of Europe respected the right of the natives as occu- 

 pants, they asserted the ultimate dominion to be in themselves ; and claimed and exer- 

 cised, as a consequence of this ultimate dominion, a power to grant the soil, while 

 yet in possession of the natives. These grants have I)een understood by all to con- 

 vey a title to the grantees, subject only to tlio Indian right of occupancy. 



The liistory of America, from its discovery to the present day, proves, we think, 

 the universal recognition of tlxese principles. 



In these statements the court, of course, speaks only fVoin the legal 

 point of view or theory, for it is well known that in their practical deal- 

 ings with the natives the nations of Europe, and the United »States also, 

 often failed to carry out this theory. It is also doubtful whether it can 

 truly be said that France fully recognized the Indian title, even theo- 

 retically, to the extent indicated. 



The right to take possession regardless of the occupancy of the 

 natives was not only claimed by all the nations making discoveries, but 

 the same principle continued to be recognized. This is shown by the 

 following instances adduced by the court, to which many others might 

 be added : 



The charter granted to .Sir Humphrey (iilbert, in 1578, authorizes him to discover 

 and take possession of such renjote, heathen and barbarous lands as were not actu- 

 ally possessed by any Christian prince or people. This charter was afterwards 

 renewed to Sir Walter Raleigh in nearly the same terms. 



Hy the charter of KiOS, under which the first permanent English settlement on this 

 continent was made, .James I. granted to .Sir Thomas Oates and others, those territories 

 in America lying on the sea-coast between the thirty-fourth and forty-fifth degrees 

 of north latitude, and which either belonged to that monarch, or were not then pos- 

 sessed by any other Christian prince or people. The grantees were divided into two 

 companies at their owu request. The first, or southern colony, was directea to settle 

 between the thirty-fourth and forty-first degrees of north latitude ; and the second, 

 or northern colony, between the thirty-eighth aud forty-fifth degrees. 



In 1()09, after some expensive and not very successful attempts at settlement had 

 been made, a new and more enlarged charter was given by the Crown to the first 

 colony, in which the King granted to the ''Treasurer and Company of Adventurers 

 of the city of London for the first colony in Virginia," in absolute property, the lauds 

 extending along the sea-coast 400 miles, and into the land throughout from sea to sea. 

 This charter, which is a part of the special verdict in this cause, was annulled, so 

 far as respected the rights of the comjiany, by the ju<lgment of the Court of King's 

 Bench on a writ of quo warranto; but the whole effect allowed to this judgment was 

 to revest in the crown the powers of government, and the title to the land within 

 its limits. 



At the solicitation of those who held under the grant to the second or northern 

 colony, a new and more enlarged charter was granted to the Duke of Lenox and 

 others, in 1620, who were denomin.ated the Plymouth Company, conveying to them 

 in absolute property all the lands between the fcr^eth aud f<.rty:eighth degrees of 

 north latitude. 



Under this patent, New England has been in a great measure settled. The com- 

 pany conveyed to Henry Rosewell aud others, in 1627, that territory which is now 

 Massachusetts; and in 1628, a charter of incorporation, comprehending tlie powers 

 of government, was granted to the purchasers. 



