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restricted to what each lawfully possesses. The country which a nation inhabits, whether that nation has emigrated thither in a body, or the different families of which it consists were previously scattered over the country, and, there uniting, formed themselves into a political society,—that country, I say, is the settlement of the nation, and it has a peculiar and exclusive right to it.

This right comprehends two things: 1. The domain, by virtue of which the nation alone may use the country for the supply of its necessities, may dispose of it as it thinks proper, and derive from it every advantage it is capable of yielding. 2. The empire, or the right of sovereign command, by which the nation directs and regulates at its pleasure every thing that passes in the country.

When a nation takes possession of a country to which no prior owner can lay claim, it is considered as acquiring the empire or sovereignty of it, at the same time with the domain. For, since the nation is free and independent, it can have no intention, in settling in a country, to leave to others the right of command, or any of those rights that constitute sovereignty. The whole space over which a nation extends its government becomes the seat of its jurisdiction, and is called its territory.

If a number of free families, scattered over an independent country, come to unite for the purpose of forming a nation or state, they altogether acquire the sovereignty over the whole country they inhabit: for they were previously in possession of the domain-a proportional share of it belonging to each individual family: and since they are willing to form together a political society, and establish a public authority, which every member of the society shall be bound to obey, it is evidently their intention to attribute to that public authority the right of command over the whole country.

All mankind have an equal right to things that have not yet fallen into the possession of any one; and those things belong to the person who first takes possession of them. When, therefore, a nation finds a country uninhabited, and without an owner, it may lawfully take possession of it: and, after it has sufficiently made known its will in this respect, it cannot be deprived of it by another nation. Thus navigators going on voyages of discovery, furnished with a commission from their sovereign, and meeting with islands or other lands in a desert state, have taken possession of them in the name of their nation: and this title has been usually respected, provided it was soon after followed by a real possession.

But it is questioned whether a nation can, by the bare act of taking possession, appropriate to itself countries which it does not really occupy, and thus engross a much greater extent of territory than it is able to people or cultivate. It is not difficult to determine that such a pretension would be an absolute infringement of the natural rights of men, and repugnant to the views of nature, which, having destined the whole earth to supply the wants of mankind in general, gives no nation a right to appropriate to itself a country, except for the purpose of making use of it, and not of hindering others from deriving advantage from it. The law of nations will, therefore, not acknowledge the property and sovereignty of a nation over any uninhabited countries, except those of which it has really taken actual possession, in which it has formed settlements, or of which it makes actual use. In effect ,when navigators have met with desert countries in which those of other nations had, in their transient visits, erected some monument to show their having taken possession of them, they have paid as little regard to that empty ceremony as to the regulation of the popes, who divided a great part of the world between the crowns of Castile and Portugal."

Those decrees being of a very singular nature, and hardly anywhere to be found but in very scarce books, the reader will not be displeased with seeing here an extract of them.

The bull of Alexander VI, by which he gives to Ferdinand and Isabella, king and queen of Castile and Arragon, the New World, discovered by Christopher Columbus.

"Motu proprio” (says the pope), “non ad vestram, vel alterius pro vobis super hoc nobis oblatae petitionis instantiam, sed de nostra mera liberalitate, et ex certa scientia, ac de apostolicae potestatis plenitudine, omnes insulas et terras firmas, inventas et inveniendas, detectas et detegendas, versus occidentem et meridiem,” (drawing a line from one pole to the other, at a hundred leagues to the west of the Azores,) “auctoritate omnipotentis Dei nobis in beato Petro concessa, ac vicariatis Jesu Christi, qua fungimur in terris, cum omnibus illarum dominiis, civitatibus, &c., vobis, haeredibusque et successoribus vestris, Castellae et Legionis regibus, in perpetuum tenore praesentium donamus, concedimus, assignamus, vosque et haeredes ac successores, praefatos, illorum dominos, cum plena libera et omni moda potestate, auctoritate et jurisdictione, facimus, constituimus, et deputamus." The pope excepts only what might be in the possession of some other Christian prince before the year 1493; as if he had a greater right to give what belonged to nobody, and especially what was possessed by the American nations. He adds: Ac quibuscunque personis cujuscunque dignitatis, etiam imperialis et regalis, status, gradus, ordinis, vel conditionis, sub excommunicationis latae sententiae poena, quam eo ipso, si contra fecerint, incurrant, districtius inhibemus ne ad insulas et terras firmas inventas et inveniendas, detectas et detegendas, versus occidentem et meridiem

pro mercibus habendis, vel quavis alia de causa, accedere praesumant absque vestra ac haeredum et successorum vestrorum praeditcorum licentia speciali, &c. Datum Romae apud S. Petrum anno 1493. IV. nonas Maji, Pontific. nostri anno primo." Leibnitii Codex Juris Gent. Diplomat. 203.

See ibid. (Diplom. 165), the bull by which pope Nicholas V. gave to Alphonso, king of Portugal, and to the infant Henry, the sovereignty of Guinea, and the power of subduing the barbarous nations of those countries forbidding any other to visit that country without the permission of Portugal. This act is dated Rome, on the 8th of January, 1454. (Appearing in original text.)

There is another celebrated question, to which the discovery of the New World has principally given rise. It is asked whether a nation may lawfully take possession of some part of a vast country, in which there are none but erratic nations 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; and the people of Europe, too closely pent up at home, finding land of which the savages stood in no particular need, and of which they made no actual and constant use, were lawfully entitled to take possession of it, and settle it with colonies. The earth, as we have already observed, belongs to mankind in general, and was designed to furnish them with subsistence: if each nation had, from the beginning, resolved to appropriate to itself a vast country, that the people might live only by hunting, fishing, and wild fruits, our globe would not be sufficient to maintain a tenth part of its present inhabitants. We do not, therefore, deviate from the views of nature, in confining the Indians within narrower linits. However, we cannot help praising the moderation of the English Puritans who first settled in New England; who, notwithstanding their being furnished with a charter from their sovereign, purchased of the Indians the land of which they intended to take possession. This laudable example was followed by William Penn, and the colony of Quakers that he conducted to Pennsylvania.

When a nation takes possession of a distant country, and settles a colony there, that country, though separated from the principal establishment, or mother-country, naturally becomes a part of the state, equally with its ancient possessions. Whenever, therefore, the political laws, or treaties, make no distinction between them, every thing said of the territory of a nation, must also extend to its colonies.

'History of the English Colonies in North America. (Appearing in original text.)

Appendix to the Answer of the United States.

PART II.

Indian Relations of the United States and

Great Britain.

39

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