*378 In this country we have *adopted the same principle, and applied it to our republican governments;a and it is a settled and fundamental doctrine with us, that all valid individual title to land within the United States is derived from the grant of our own local governments, or from that of the United States, or from the crown, or royal chartered governments established here prior to the revolution. This was the doctrine declared in New-York, in the case of Jackson v. Ingraham, and it was held to be a settled rule, that the

dom, was to be attributed to the constant working of the crown lawyers, who always presumed that the land was held by feudal tenure, until the contrary could be shown. Rise and Progress of the English Commonwealth, vol. i. 584. The same principle of feudal tenure prevails in Scotland. Bell's Prin. of the Law of Scotland, sec. 676.

The Revised Constitution of New-York, of 1846, declares that the people, in their right of sovereignty, are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of the state, and that all lands, the title to which fails from a defect of heirs, reverts or escheats to the people. Art. 1. sec. 11. (1)

b 4 Johns. Rep. 163. Jackson v. Waters, 12 ibid. 365. S. P. By the N. Y. Revised Statutes, 3d edit. vol. ii. p. 2. sec. 1, the people are declared to possess the original and ultimate property in and to all lands within the jurisdiction of the state. It was declared by statute in Connecticut, in 1718, that no title to lands was valid, unless derived from the Governor and Company of the colony. Revised Statutes of Connecticut, 1784, 113. In the elaborately discussed case of De Armas v. Mayor, &c., of New-Orleans, 5 Miller's Louis. Rep. 132, it was admitted to have been uniformly the practice of all the European nations having colonial establishments and dominion in America, to consider the unappropriated lands occupied by savage tribes, and obtained from them by conquest or purchase, to be crown lands, and capable of a valid alienation, by sale or gift by the sovereign, and by him only. No valid title could be acquired without letters patent from the king. See ibid. 188. 195-197. 206. 218. 216. But it is said that purchases made at Indian treaties, under the competent sanction of the government of the United States, vest a valid title in the purchaser, without any patent. Baldwin, J., in Mitchell v. United States, 9 Peters' U. S. Rep. 748. 756, 757. This opinion is, however, so contrary to the previous authorities on the subject, that I should apprehend it would be proper for further consideration. The law, however, seems to be considered as settled, that purchases made at Indian treaties, with the approbation of the government agent, carry a valid title without the necessity of a patent from the United States. Coleman v. Doe, 4 Smedes & Marshall, 40.

In the English law it has always been considered a fundamental principle, that the king, by his prerogative, was entitled to all mines of gold and silver, whether in lands belonging to the crown or to a subject. Lord Coke says that the king has no such right, by virtue of his prerogative, in any other metals than gold and silver,

(1) People v. Livingston, 8 Barb. R. 253.

courts could not take notice of any title to land not derived from our own state or colonial government, and duly verified

for those metals alone are requisite for the coining of money for the use of his subjects. 2 Inst. 577, 578. In the great Case of Mines, in the Exchequer, (Plowd. 310. 336,) it was resolved, by a majority of the twelve judges, that if the mine, in the lands of a subject, was of copper, tin, lead or iron, and had gold or silver intermixed, though of less value than the baser metals, the whole mine belonged to the crown, because the nobler metal attracted to it the less valuable, and the king could not hold jointly with the subject, and consequently he took the whole. The minority of the judges, and Plowden himself, dissented from this severe and unreasonable doctrine, and it was corrected by the statutes of 1 Wm. & Mary, c. 30, and 5 W. & Mary, c. 6, which declared, that no mine of copper, tin, lead or iron, should be adjudged a royal mine, though gold or silver might be extracted from it; but the crown was allowed to take the proceeds of the mine in such cases, provided that the king paid the owner within thirty days after the ore should have been extracted and raised, at certain specified rates.

The statute law of New-York has asserted the right of the state, as sovereign over mines to the extent of the English statutes, and with more definite limits. The provision in the New-York R. S. 3d edit. vol. i. 322, is that all mines of gold and silver discovered, or hereafter to be discovered in this state, belong to the people in their right of sovereignty; and also, all mines of other metals on lands owned by persons not citizens of any of the United States; and also, all mines of other metals discovered on lands owned by a citizen of any of the United States, the ore of which, upon an average, shall contain less than two equal third parts in value of copper, tin, iron and lead, or any of those metals; also, all mines and all minerals and fossils discovered upon lands belonging to the people of the state, shall be the property of the people. But all mines, of whatever description, other than mines of gold and silver, discovered upon any lands owned by a citizen of any of the United States, the ore of which, upon an average, shall contain two equal third parts or more in value of copper, tin, iron and lead, or any of those metals, shall belong to the owner of such land. N. Y. R. S. 3d edit. vol. i. 322. statute contains some qualifications in favour of the discoverer of mines.

The

What is the law of the other states on the subject of royal mines, I am not able to say, though it is to be presumed that the exception of mines of gold and silver, is the usual formula in all government patents and grants by the United States, as well as by the several states.

Mr. Justice Clayton, of Georgia, in the case of The State of Georgia v. Canatoo, a Cherokee Indian, brought up on habeas corpus, (reported in the National Intelligencer of October 24, 1843,) held, that the right and title to land included a right to all the mines and minerals therein, unless they were separated from the lands by positive grant or exception; and that if the state made a grant of public lands to an individual, without any exception of mines and minerals, the mines and minerals would pass to the grantee as part and parcel of the land; and that the Cherokee Indians had a right to dig and take away gold and silver from the lands in their reserves, or lands not ceded to the state, and were not amenable in trespass for so doing, inasmuch as they had as good a right to the use of the mines and minerals as to the use of the land and its products in any other respect; that they were lawful occupants, not chargeable with waste; for the right of the state was VOL. III. 30

by patent. This was also a fundamental principle in the colonial jurisprudence. All titles to lands passed to individuals from the crown, through the colonial corporations, and the colonial or proprietary authorities. Even with respect to the Indian reservation lands, of which they still retain the occupancy, the validity of a patent has not hitherto been permitted to be drawn in question in a suit between citizens of the state, under the pretext that the Indian right and title, as original lords of the soil, had not been extinguished. It was also declared, in Fletcher v. Peck, to be the opinion of the Supreme Court of the United States, that the nature of the Indian title to lands lying within the territorial limits of a state, though entitled to be respected by all courts until it be legitimately extinguished, was not such as to be absolutely repugnant to a seisin in fee on the part of the government within whose jurisdiction the lands are situated.d

*379

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*(2) The history and grounds of the claims of the European governments, and of the United States to the lands on this continent, and to dominion over the Indian

a right of pre-emption only, and never considered otherwise by the government of Great Britain, when it claimed and exercised dominion over this country, nor by our own government which succeeded to the British powers.

■ Dr. Arnold, in his History of Rome, vol. i. 267–270, considers it to have been a general principle in the ancient states of Greece and Italy, that all property in land was derived from the government by allotment to individuals in absolute right. Conquered lands were won for the state, and not for individuals. That portion which was assigned to individuals they took absolutely, but the great mass of the lands was left as the demesne of the state, and the occupiers of it held only by a precarious tenure.

Jackson v. Hudson, Johns. Rep. 375. It is judicially settled in Kentucky and Ohio, and in the Supreme Court of the United States, that a patent for land conveys the legal title, but leaves all equities open; and the courts go behind the patent for lands, and examine the equity of the title. Brush v. Ware, 15 Peters' U.S. Rep. 93.

• 6 Cranch's Rep. 87.

d This was the language of a majority of the court in the case of Fletcher v. Peck. It was a mere naked declaration, without any discussion or reasoning by the court in support of it; but Judge Johnson, in the separate opinion which he delivered, did not concur in the doctrine. He held that the Indian nations were absolute proprietors of the soil, and that practically, and in cases unaffected by particular treaties, the restrictions upon the right of soil in the Indians amounted only to an exclusion of all competitors from the market, and a pre-emptive right to acquire a fee simple by purchase when the proprietors should be pleased to sell.

tribes, have been since more largely and fully considered. In discussing the rights and consequences attached by the international law of Europe to prior discovery, it was stated in Johnson v. M'Intosh,a as an historical fact, that on the discovery of this continent by the nations of Europe, the discovery was considered to have given to the government by whose subjects or authority it was made, a title to the country, and the sole right of acquiring the soil from the natives, as against all other European powers. Each nation claimed the right to regulate for itself, in exclusion of all others, the relation which was to subsist between the discoverer and the Indians. That relation necessarily impaired, to a considerable degree, the rights of the original inhabitants, and an ascendancy was asserted in consequence of the superior genius of the Europeans, founded on civilization and Christianity, and of their superiority in the means and in the art of war. The European nations which respectively established colonies in America, assumed the ultimate dominion to be in themselves, and claimed the exclusive right to grant a title to the soil, subject only to the Indian right of occupancy. The natives 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, though not to dispose of the soil at their own will, except to the government claiming the right of pre-emption. The practice of Spain, France, Holland and England, *proved the *380 very general recognition of the claim and title to

8 Wheat. Rep. 543.

By the laws of Spain, particular portions of the soil of Louisiana were allotted to the Indians, and care was taken to make the acquisitions valuable, by preventing the intrusion of white settlers. The Laws of the Indies directed, that when the Indians gave up their lands to the whites, others should be assigned to them; and the lands allotted to the Indian tribes by the Spanish officers, in pursuance of the laws of the Indies, were given to them in complete ownership, equally as if they were held under a complete grant. But as the Indians were considered in a state of pupilage, the authority of the public officers, who were constituted their guardians was necessary to a valid alienation of their property. Recap. des las Indias, cited by Porter, J., in 18 Martin's Rep. 357-359, who speaks most liberally of the humane policy and justice of the Spanish laws in relation to the Indian tribes. See, also, translations from the Recopilacion de Leyes de las Indias, in White's new Recopilacion, vol. ii. 34. 41. 59. 95, which shows the anxious and paternal care with which the Spanish laws guarded the Indians from abuse and fraud.

American territories given by discovery. The United States adopted the same principle, and their exclusive right to extinguish the Indian title by purchase or conquest, and to grant the soil, and exercise such a degree of sovereignty as circumstances required, has never been judicially questioned.a The rights of the British government within the limits of the British colonies, passed to the United States by the force and effect of the act of independence; and the uniform assertion of those rights by the crown, by the colonial governments, by the individual states, and by the Union, is, no doubt, incompatible with an absolute title in the Indians. That title has been obliged to yield to the combined influence which military, intellectual and moral power gave to the claim of the European emigrants.b

(3.) This assumed but qualified dominion over the Indian tribes, regarding them as enjoying no higher title to the soil than that founded on simple occupancy, and to be incompetent to transfer their title to any other power than the govern

As early as 1782, the American minister, Mr. Jay, told the Spanish minister, Count d'Aranda, that our right to the territories of the Indian nations comprehended within the colonial chartered limits, was a question to be discussed and settled between us and the Indians; that we claimed the right of pre-emption with respect to them, and the sovereignty with respect to all other nations. Life and Writings of John Jay, vol. ii. 474. The Indians in the N. W. Territory of the United States did not concur in any such logic, for the delegates of the confederate nations who met in council the American commissioners at Sandusky, in 1793, to attempt the negotiation of a peace, declared that they had never yielded to or agreed with the King of England, or the United States, to surrender any exclusive right of pre-emption, and that they consider themselves free to make any bargain or cession of lands whenever and to whomsoever they pleased.

The right of discovery was not recognised in the Roman law. It is an imperfect title unless followed by occupation, and unless the intention of the sovereign or state to take possession, be declared or made known to the world. Vattel, b. i. c. 18. sec. 207, 208. Martens' Precis. p. 37. Kluber, Droit des gens modernes de l'Europe, sec. 126. This is the language of the modern diplomatists and publicists, on the part of England, Spain, Russia and the United States. Mere transient discovery amounts to nothing, unless followed in a reasonable time by occupation and settlement, more or less permanent, under the sanction of the state. In the disputes and discussions between the British government and Spain, in 1790, relative to Nootka Sound, on the N. W. Coast of America, the former claimed as an indisputable right, the possession of such establishments as they should form, with the consent of the natives of the country, not previously occupied by any of the European nations. See Greenhow's History of Oregon and California, 4th edit.