APPENDIX B Text, § 64, p. 519. INDIAN LAND TITLES § 72. Silvius on Maryland. § 73. Kent and others on the general question. § 72. WE have stated above the circumstances in which Dr. Silvius of Doway was consulted on the Maryland question of Mattapany. Matters concerning the entire text of his answer, which is in Latin, may be seen in the volume of Documents, I. No. 17. We subjoin here, in English, parts of the solution, as translated from the fragmentary Latin manuscript, apparently original and autograph, in the Westminster Diocesan Archives, xxx. No. 28. The passages will serve for a term of comparison with the doctrine of others on the subject, as indicated in the next section (§ 73). (1) Can any one but Baltimore be proprietary in Maryland? ... "[Answer to the first Query.] . . . Then one asks in general: Whether no person whatever, excepting N., his heirs and assigns, can be the true and absolute lord and proprietary of any part or tract, found there and previously unoccupied, unless N. give his consent? The answer must be the same as before; that no one can be, for the reasons adduced. Besides, it belongs to the lord paramount, such as is the King of England, or else to the lord proprietary, as N. is, to observe and exact the observance of all that conduces to the stable constitution and government of that new plantation, unto the common weal; with the proviso that they do not forbid such persons to travel, trade, dwell there, as shall do so without injury to the English. For, by the natural law of society and human intercourse, others have a right to travel into those provinces, and to trade and stay there, doing, however, no harm to the fatherland or the persons of the English who dwell there; as Victoria shows at large in the lecture cited, 5, section 3. Should any such detriment be reasonably apprehended, the persons who give cause to fear may be prohibited from trading or staying there. "Answer to the second Query. Of those parts where the barbarians live and have already the right of ownership, anything can be given, granted, or validly sold, to any subject of the prietors make King of England by such barbarians, within the limits so valid gifts? allotted to the said N. The reason is, because barbarians have the true ownership of the things they possess; and neither the (2) Can the Indian pro $ 72] CONSULTATION OF BALTIMORE'S PARTY 571 King of England nor any one else can take that right of ownership away from them. For, since faith is not the foundation of proprietorship, and furnishes no title of just ownership, it follows that infidels, from the fact of their being infidels, do not thereby cease to be owners of the things which they possess. This is self-evident; and Cajetan proves it well, 2da 2de q. 66, ad art. 8,1 subjoining as a conclusion drawn thence, that no king, nor Emperor, nor the Roman Church, can declare war against them for the sake of occupying their lands, or reducing them to temporal subjection; since there is no motive for a just war. Victoria likewise, in the same lecture, 5, section 1, asserts more than once that there is nothing to prevent barbarians from being true owners; neither their sins in general, nor the sin of infidelity in particular; and that they are owners by public right as well as by private right; nor is there any title here enabling Christians to occupy their goods and lands. Now, the right of ownership means the power of using one's property for any use legally permitted; as may be seen in Dominic Soto, l. 4, q. 1, art. 1, and in Bannez, at the beginning of the treatise on ownership, q. 62, in 2da 2de 2 Wherefore barbarians can use their lands and possessions, either by keeping them, or by giving, selling, granting them to whomsoever they will, especially to the English. "If you say that barbarians cannot make a valid gift, sale, or grant to the subjects of the King of England, not for want of power in the barbarians [to give], but for want of capacity on the part of the subjects [to accept], inasmuch as the King has incapa- ability in any citated every subject of his to that effect, it appears contrariwise that there is no decree in the royal charter about such a disability; nor can it be satisfactorily inferred from the charter. It is true that he gives, grants, and confirms to the said N., his heirs and assigns, all that part of the peninsula, etc., all the islands, all the soil, all the fields, etc., and that he makes them true and absolute lords and proprietaries of the region aforesaid and of all the premises; and that he grants all this to their sole and proper behoof and use. Whence it truly follows that, by the royal gift and grant, they alone have the dominion and ownership of the region newly discovered, not before settled by them, or granted. But, as to the parts and lands previously occupied and possessed by the barbarians, nothing is decreed, and nothing could be decreed by the King. For those barbarians are not his subjects, nor do their lands and fields pertain to the King's dominion or lie at his disposal; but the barbarians have the dominion and ownership thereof, just as they had before. The King became lord only of the land newly discovered and not occupied by any; not of that land which had its occupiers and owners. It is said, indeed, in the royal charter, that the King enables those who No dis colonist to accept. 1 Viz. of the Summa Theologica of St. Thomas Aquinas, as commented on by Cardinal Cajetan. 2 Viz. of the same Summa Theologica of St. Thomas. shall desire it to receive or buy of the said N. But it does not follow thence that he disenables those who shall accept or buy, not of N. himself, but of the barbarians, such lands, fields, houses, as these had previously possessed and occupied. (3) Right of the colonist accepting, exclusive of Baltimore. "Hence may be gathered the answer to the third Query. By the mere fact that the barbarians give, grant, or sell to a subject of the King of England any part of the lands hitherto occupied by themselves, the aforesaid N. does not acquire any true right to that part, so as to be its lord and proprietary; but that person is the proprietary to whom the barbarians granted, gave, or sold it. These, as true owners of that part, have acted according to the power which is in them, when they disposed of the same to that person's use and not to the use of the said N. Nor can any sufficient ground be discerned for saying that the King incapacitated such a person, his subject, from buying or accepting of the barbarians parts of that kind. bound to respect an Indian gift to a colonist. "The answer to the fourth Query follows from what has been said; to wit, that, in case the barbarians give, grant, or sell any such part or (4) Baltimore region to any subject of the King of England, whether designated (assignato) or not by the said N., the latter is bound in conscience to respect and ratify such grant, gift, or sale; nor can he give the property to another, or turn it to other uses. For the grant, gift, sale, has been effected by those who have the legitimate dominion and ownership of these goods; whereas the said N. has not received from any one a power to go about disposing of them otherwise; since the King is not lord of that part or region. For the dominion which accrued to the King by right of discovery extends no farther than the regions and lands newly discovered and uninhabited; it does not affect those which had true lords and owners. The law of nations has it that what are nobody's goods may become the property of the first who occupies them; not that what are somebody's already may be so occupied; for which consult Cajetan and Victoria, as quoted above. "As to the reasons for doubting: To the first one propounded the answer is conformable to what has just been said; that the words of the grant do indeed run, as if N. alone was lord and proprietary The charter, and land un- of the whole region, of all the tracts, etc. But they have occupied, etc. reference to a region uninhabited and to tracts uncultivated; that is, to such as have fallen to the King by right of discovery, not to other lands; because to other lands the King has acquired no right. "In the same manner are to be understood the arguments brought forward in the second reason for doubting. "It is not true what is adduced in the third reason: that the argument which applies to lands not inhabited or occupied by barbarians may also be applied to the parts which the barbarians do possess in that region. For of these lands which they possess they are true lords and $ 73] THE RIGHT BASED ON DISCOVERY 573 owners; as they are not of the others which have been discovered and were not inhabited by any one. "As to the confirmation: It is of no consequence that the first colonists, or perchance even the King himself, understood the said N. to be in this manner the sole lord, and to be the only one who had any right to all that region, and to each of its parts; so that no subjects of the King of England could accept or buy of the barbarians anything in their possession, except in dependence on the said N. For, when kings are kindly disposed, they are easily imposed upon; and, as to what the first colonists thought, that lays down no law. "So resolved at Doway, the 28th day of November, in the year 1641 -deferring to a better judgment. "FRANCIS SILVIUS, "Doctor of Sacred Theology and Regius and Ordinary Professor of the same." 3 doctrine. The scholastic theologian Victoria, used so largely by Silvius, is also summarized with sufficient correctness upon this subject by Wheaton, in his Law of Nations. This American lawyer says that Wheaton's Victoria "asserts the natural right of the Indians to sketch of dominion over their own country. He denies the assertion Victoria's of Bartolus and the other civilians of the school of Bologna, that the Emperor is lord of the whole world,' or that the Pope could confer on the King of Spain any dominion over those parts inhabited by infidel barbarians. He rests their title on what he calls the right of natural society and intercourse, as authorizing the Spaniards to sojourn and trade in those parts of the world without injuring the native inhabitants. The refusal of hospitality and permission to trade he holds to be a just ground of war, which again might lead to the acquisition of sovereignty through the right of conquest confirmed by voluntary cession. He denies the right of making war upon the infidel nations for refusing to receive the gospel; but asserts that they might be constrained to allow its being preached to those who wished to hear, and [that they might be] prevented from persecuting the new converts." Then Victoria goes on to limit the possibilities of such latitude being abused by the Christians.1 § 73. Admitting the distinction between a national dominium or domain in using a country, and a national imperium or empire in governing the country, we may quote what Vattel says of occupancy: "There is another celebrated question to which the discovery of the new world has principally given rise. It is asked whether a nation may • Westminster Diocesan Archives, xxx. No. 28.-Documents, I. No. 17. H. Wheaton, History of the Law of Nations, p. 36.-Cf. Victoria, Franciscus de, [1480-1546], "Relectiones Undecim: De Indis recenter inventis, relectio prior," ff. 129-162; "De titulis quibus barbari potuerint venire in ditionem Hispanorum," ff. 162-174, edit. Salmanticæ, 1565. Vattel on lawfully take possession of some part of a vast country, in which there are none but erratic peoples, whose scanty population is incapable of occupying the whole. We have already observed (§ 81), in establishing the obligation to cultivate the earth, that those nations cannot exclusively appropriate to themselves more land than they have occasion for, or more than they are able to settle and cultivate. Their unsettled habitation in those immense regions cannot be accounted a true and legal possession." This writer then approves of buying the lands from the Indians as the "English Puritans," he says, have done; and so too the Quakers. He quotes the History of the English Colonies in North America. Under the name of "English Puritans" here, the credit of Maryland Catholics has been quietly transferred to the wrong party.5 American judges on Indian land titles. The opinions, judgments, and theories reported in different parts of Chancellor Kent's Commentaries on American Law, are singularly vacillating and mutually discordant. The judges who have delivered such different opinions at different times would seem to have been influenced in several ways. First, there is conspicuous in latter days a want of familiarity with matters of history and ethical right, as facts evolved and right was understood in the seventeenth century. Secondly, midway in American history, a new set of philosophical notions about man and society originated in the free-thinking and in the revolutions of the eighteenth century. Thirdly, whether as a cause or as an effect of vacillating opinions, the whole policy of the United States Government in dealing with the Indians changed, to the disadvantage of the latter, at a certain period in the nineteenth century. In Kent's Commentaries this new departure is dated from 1829. The administration of President Jackson inaugurated the change." However, some of the opinions delivered by the Supreme Court of the United States will show a substantial agreement in both principle and policy with the statements quoted in our last section from the Doway Doctor of the seventeenth century. The Chancellor reports that the Supreme Court of the United States, in the case of Worcester, reviewed the whole ground of controversy relative to the character and validity of Indian rights within the territorial dominions as they exist now of the United States; and especially with reference to the Cherokee nation, within the territorial limits of Georgia. It declared that the right acquired by Europeans on the ground of discovery was an exclusive right to purchase; which did not deny the right of the Indian possessor to sell. 5 Vattel, Droit des Gens, i. § 209, pp. 268, 269; edit. Royer-Collard: "On ne s'écarte donc point des vues de la nature, en resserrant les sauvages dans des bornes plus étroites. Cependant on ne peut que louer la modération des Puritains anglais, qui les premiers s'établirent dans la Nouvelle Angleterre. Quoique munis d'une charte de leur souverain, ils achetèrent des sauvages le terrein qu'ils voulaient occuper ('Histoire des Colonies anglaises de l'Amérique septentrionale'). Ce louable exemple fut suivi par Guillaume Penn, et la colonie de Quackers qu'il conduisit dans la Pensylvanie." 3 Kent, Comm., 399, 400, note. |