by right of con- quest and driving out the natives (with what natural justice, I shall not at present inquire), or by treaties. And, therefore, the common law of England, as such has no allowance or authority there ; they being no part of the mother country, but distinct, though de- pendant dominions."^ Mr. Justice Story,' however, thinks there is great reason to doubt the accuracy of this statement, in a legal point of view. The European nations, by whom America was colonized, treated the subject in a very different manner.'* They claimed an absolute do- ' 1 Bl Com., 107. 2 1 Bl Com., 107. ' Stori/, Com. on Con., v. 1, p. 101.
- 1 Chaltfi. Annals, 676 ; 3 Wilson's Works, 234. 5 66 HISTOKT OF USUKT.
minion over the whole territories afterwards occupied by them, not in virtue of any conquest of, or cession by the Indian natives, but as a right acquired by discovery.' Some of them, indeed, obtained a sort of confirmatory grant from the Papal authority, but as between themselves, they treated the dominion and title of the territoy as resulting from priority of discovery ;^ and that European power which had first discovered the country, and set up marks of possession, was deemed to have gained the right, though it had not set up a colony there.' The title of the Indians was not treated as a right of priority and dominion, but as a mere right of occupancy/ As infidels, heathens, and savages, they were not allowed to possess the prerogatives belonging to absolute, sovereign, and independent nations." The territory over which they wandered, and which they used for their temporary and fugitive purposes, was, in respect to Christians, deemed as if it were inhab- ited only by brute animals. There is not a single grant from the British crown, from the earliest of Elizabeth, down to the latest of George II., that affects to look to any title, except that founded on discovery. Conquest or cession is not once alluded 1 Vaitei, b. 1, c. 18, ss. 205-209. ^ 8 Wheat., R. 543, 576-595. ' Fenn v. Lord Baltimore, 1 Vez., 444.