THERE is a question in the Law of Nations; which it is proper for the inhabitants of every British colony, as well as for every professed lawyer, to understand, viz.:— what rights the discovery of a new country, inhabited by barbarous or semi-barbarous tribes, confers on the civilized people or nation making that discovery. When the spirit of maritime discovery was first awakened in the modern world, the Pope of Rome, as pretended vicegerent of GOD upon earth, presumed to settle this question in a very summary manner, by granting to his most faithful vassal the King of Portugal, the fee-simple and entire sovereignty of whatever new countries he might discover by sailing in an easterly direction, and to his most Catholic vassal the King of Spain, whatever new countries he might discover by sailing to the westward. With this Golden Bull in their hands, the Portuguese accordingly stretched along the coast of Africa to the southward, doubled the Cape of Good Hope, and at length reached the continent of Asia; planting colonies along the east and west coasts of Africa, and extending their sovereignty and possessions in the East Indies, from Bombay to Macao. The Spaniards, in like manner, not only discovered and colonized the West Indies, and the southern portions of the continent of America, but afterwards crossed the Pacific from Cape Horn, and unexpectedly encountered the Portuguese among the Philippine Islands, leaving it to the Pope, who, it seems, was no scholar in matters of geography, and who never imagined that people could arrive at the same place, by sailing either east or west, to decide to which of the royal claimants these islands should belong.
The Pope's grant was no dead letter to the world. On the contrary, it sanctified the bloody and atrocious wars that were waged for a century and upwards by the Portuguese for the establishment of their rightful empire in the East, and for the propagation, forsooth, of the Holy Catholic religion. It nerved the arm of those splendid butchers, CORTEZ and PIZARRO, and hallowed the ten thousand atrocities of the numerous host of Spanish robbers that followed them, and that spread themselves like a pestilence over the unfortunate empires of Mexico and Peru; all of these atrocities being avowedly perpetrated in honour of the Mother of God, and in vindication of the territorial rights and sovereignty of the King of Spain! Yes, the Man of Sin, as he is emphatically styled in Scripture, has yet to answer at the tribunal of GOD for the accumulation of crime and misery, of robbery and bloodshed, of which his impious pretensions to the absolute sovereignty and disposal of the kingdoms of the earth were the manifest cause and origin in the continent and isles of America.
The bad example of the Pope of Rome was too readily followed by the kings of the earth. Discovery was held by the European powers generally, to confer upon the discoverer the entire sovereignty and possessions of the regions he should discover, and in this spirit grants were given by our own King JAMES the First, the SOLOMON of his age, to certain companies proposing to plant colonies in America, of all the lands lying between certain parallels of latitude from the Atlantic to the Pacific. But there was this striking difference between the grants of the Protestant Kings of England, and those of the Most Catholic Kings of Spain, that whereas the latter not only granted away vast and valuable tracts of country in America to their European favourites; but expressly included the native inhabitants of these tracts in their grants— such inhabitants being usually worked to death in the mines by the grantees, after being deprived of their personal liberty, and despoiled of all their property, with a view to their conversion to the Catholic religion—the English charters uniformly respected the personal liberty, and held sacred the territorial rights of the Aborigines; the meaning of the charters being, merely, that no other European power or companies should have a right to interfere with the chartered companies in acquiring land from the Indians, or in effecting a settlement otherwise within the prescribed limits. It is gratifying to find that distinguished Judge, Chancellor KENT, of New York, the BLACKSTONE of America, bearing testimony in favour of Great Britain on this important point. The subject was incidentally brought before that eminent lawyer, so lately as in the year 1832, in the case of an appeal to the Supreme Court of the United States of America, from the decision of the Supreme Court of the State of Georgia, on a matter involving the rights and privileges of the Cherokee nation, settled from time immemorial within the territory of that State; and the following is an extract of the Chancellor's luminous argument—an argument not less honourable to himself, and to civilized humanity, than creditable to the Government of our native land:
America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws. It is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the county discovered which annul the pre-existing rights of its ancient possessors.
After lying concealed for a series of ages, the enterprise of Europe, guided by nautical science, conducted some of her adventurous sons into this western world. They found it in possession of a people who had made small progress in agriculture or manufactures, and whose general employment was war, hunting, and fishing.
Did these adventurers, by sailing along the east, and occasionally landing on it, acquire for the several governments to whom they belonged, or by whom they were commissioned, a rightful property in the soil, from the Atlantic to the Pacific; or rightful dominion over the numerous people who occupied it? Or has nature, or the great Creator of all things, conferred their rights over hunters and fishermen, or agriculturists and manufacturers?
But power, war, conquest, give rights which, after possession, are conceded by the world, and which can never be controverted by those on whom they descend. We proceed, then, to the actual state of things, having glanced at their origin; because holding it in our recollection might shed some light on existing pretensions.
The great maritime powers of Europe discovered and visited different parts of this continent at nearly the same time. The object was too immense for any one of them to grasp the whole ; and the claimants were too powerful to submit to the exclusive or unreasonable pretensions of any single potentate. To avoid bloody conflicts, which might terminate disastrously to all, it was necessary for the nations of Europe to establish some principle which all should acknowledge, and which should decide their respective rights as between themselves. This principle, suggested by the actual state of things, 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.
This principle, acknowledged by all Europeans, because it was the interest of all to acknowledge it, gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil, and making settlements on it. It was an exclusive principle, which shut out the right of competition among those who had agreed to it : not one which could annul the previous right of those who had not agreed to it. It regulated the right given by discovery among the European discoverers; but could not affect the rights of those already in possession, either as original occupants, or as occupants by virtue of a discovery made before the memory of man. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell.
The relation between the Europeans and the natives was determined in each case by the particular Government which asserted and could maintain this pre-emptive privilege in the particular place. The United States succeeded to all the claims of Great Britain, both territorial and political; but no attempt, so far as is known, has been made to enlarge them. So far as they existed merely in theory, or were in their nature only exclusive of the claims of other European nations, they still retain their original character, and remain dormant. So far as they have been practically exerted, they exist in fact, are understood by both parties, are asserted by the one, and admitted by the other.
Soon after Great Britain determined on planting colonies in America, the King granted charters to companies of his subjects, who associated for the purpose of carrying the views of the crown into effect, and of enriching themselves. The first of these charters was made before possession was taken of any part of the country. They purport generally to convey the soil, from the Atlantic to the South Sea. This soil was occupied by numerous and warlike nations, equally willing and able to defend their possessions. The extravagant and absurd idea, that the feeble settlements made on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern the people, or occupy the lands from sea to sea, did not enter the mind of any man. They were well understood to convey the title which, according to the common law of European sovereigns respecting America, they might rightfully convey, and no more. This was the exclusive right of purchasing such lands as the natives were willing to sell. The crown could not be understood to grant what the crown did not affect to claim, nor was it so understood.
The power of making war is conferred by these charters on the colonies, but defensive war alone seems to have been contemplated. In the first charter to the first and second colonies, they are empowered, " for their several defences to encounter, expulse, repel, and resist, all persons, who shall, without license," attempt to inhabit "within the said precincts and limits of the said several colonies, or that shall enterprise, or attempt at any time hereafter, the least detriment or annoyance of the said several colonies or plantations."
The charter to Connecticut concludes a general power to make defensive war with these terms : " And upon just causes to invade and destroy the natives, or other enemies of the said colony."
The same power, in the same words, is conferred on the Government of Rhode Island.
This power to repel invasion, and, upon just cause, to invade and destroy the natives, authorizes offensive as well as defensive war, but only " on just cause." The very terms imply the existence of a country to be invaded, and of an enemy who has given just cause of war.
The charter to William Penn contains the following recital: " And because, in so remote a country, near so many barbarous nations, the incursions, as well of the savages themselves as other enemies, pirates and robbers, may probably be feared, therefore we have given," &c. The instrument then confers the power of war.
These barbarous nations whose incursions were feared, and to repel whose incursions the power to make war was given, were surely not considered as the subjects of Penn, or occupying his lands during his pleasure.
The same clause is introduced into the charter to Lord Baltimore.
The charter to Georgia professes to be granted for the charitable purpose of enabling poor subjects to gain a comfortable subsistence by cultivating lands in the American provinces, " at present waste and desolate." It recites :—" And whereas our provinces in North America have been frequently ravaged by Indian enemies, more especially that of South Carolina, which, in the late war, by the neighbouring savages, was laid waste by fire and sword, and great numbers of the English inhabitants miserably massacred; and our loving subjects who now inhabit there, by reason of the smallness of their numbers, will, in case of any new war, be exposed to the like calamities, inasmuch as their whole southern frontier continueth unsettled, and lieth open to the said savages."
These motives for planting the new colony are incompatible with the lofty ideas of granting the soil, and all its inhabitants, from sea to sea. They demonstrate the truth, that these grants asserted a title against Europeans only, and were considered as blank paper, so far as the rights of the natives were concerned. The power of war is given only for defence, not for conquest.
The charters contain passages, showing one of their objects to be the civilization of the Indians, and their conversion to Christianity—objects to be accomplished by conciliating conduct, and good example; not by extermination.
The actual state of things, and the practice of European nations, on so much of the American continent as lies between the Mississippi and the Atlantic, explain their claims and the charters they granted. Their pretensions unavoidably interfered with each other; though the discovery of one was admitted by all to exclude the claim of any other, the extent of that discovery was the subject of unceasing contest. Bloody conflicts arose between them, which gave importance and security to the neighbouring nations. Fierce and warlike in their character, they might be formidable enemies, or effective friends. Instead of rousing their resentments, by asserting claims to their lands, or to dominion over their persons, their alliance was sought by flattering professions, and purchased by rich presents. The English, the French, and the Spaniards, were equally competitors for their friendship and their aid. Not well acquainted with the exact meaning of words, nor supposing it to be material whether they were called the subjects, or the children of their father in Europe; lavish in professions of duty and affection; in return for the rich presents they received; so long as their actual independence was untouched, and their right to self-government acknowledged, they were willing to place dependence on the power which furnished supplies of which they were in absolute need, and restrained dangerous intruders from entering their country ; and this was probably the sense which the term was understood by them.
Certain it is, that our history furnishes no example, from the first settlement of our country, by any attempt, on the part of the crown, to interfere with the internal affairs of the Indians, further than to keep out the agents of foreign powers, who, as traders or otherwise, might seduce them into foreign alliances. The King purchased their lands when they were willing to sell, at a price they were willing to take; but never coerced a surrender to them. He also purchased their alliance and dependence by subsidies ; but never intruded into the interior of their affairs, or interfered with their self-government, so far as respected themselves only.
The general views of Great Britain, with regard to the Indians, were detailed by Mr. Stuart, Superintendent of Indian Affairs, in a speech delivered at Mobile, in the presence of several persons of distinction, soon after the peace of 1763. Towards the conclusion he says, " Lastly, I inform you, that it is the King's order to all his governors and subjects, to treat the Indians with justice and humanity, and to forbear all encroachments on the territories allotted to them; accordingly all individuals are prohibited from purchasing any of your lands; but, as you know, that your white brethren cannot feed you when you visit them, unless you give them grounds to plant, it is expected that you will cede lands to the King for that purpose. But, whenever you shall be pleased to surrender any of your territories to his Majesty, it must be done for the future, at a public meeting of your nation, when the governors of the provinces, or the superintendent shall be present, and obtain the consent of all your people. The boundaries of your hunting grounds will be accurately fixed, and no settlement permitted to be made upon them As you may be assured that all treaties with you will be faithfully kept, so it is expected that you, also, will be careful strictly to observe them."
There are various questions connected with the general subject of the intercourse of Europeans with the barbarous or semi barbarous inhabitants of foreign countries, which we consider it of some importance to discuss through the medium of the Press in this colony, and to the discussion of which the preceding remarks and extract will serve as a suitable preliminary; but as we should not be able to do justice to any of them in the sequel of our present article, we shall defer the consideration of any of them to a future opportunity.
Colonist (Sydney, NSW : 1835 - 1840), Saturday 21 April 1838, page 2
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