This section is from the book "Popular Law Library Vol1 Introduction To The Study Of Law Legal History", by Albert H. Putney. Also see: Popular Law-Dictionary.
The history of the English colonies in America was, to a great degree, moulded by the character of the century in which these colonies were principally settled. The failure of Raleigh's attempts at colonization in the sixteenth century was, in the end for the benefit of the new Anglo-Saxon nation which was to arise in the New World. The character of the age of its settlement must be reflected permanently in the character of every colony. The sixteenth century was primarily a century of commercial enterprise and of adventure. We find the spirit of knight errantry of the Crusades existing side by side with the commercialism of the present day. The voyages, explorations and attempted colonization of this period were all tinged with the one or both of these influences. Any colonies which had owed their origin to the enterprises of such times must, of necessity, have been of the exploitation class. They could hardly have failed to have become colonies whose inhabitants would have looked upon America as merely a field for gain or adventure, and whose love and allegiance would have remained true to their old home across the Atlantic. Time would have lessened such conditions, but could hardly have eradicated them by the close of the eighteenth century. The seventeenth century was a century of far different character in English history; it was a century of intense religious and political awakening; a century which witnessed the greatest of all Anglo-Saxon contests for civil rights and political liberty. The character of the English colonization during this century was, in the main, consistent with the character of the period itself. The colonists were, in general, men in whom the prevalent spirit of the age, the intense love of political liberty, and the resolute resistance to tyranny was strongly implanted. The century which gave to England the Petition of Right and the Bill of Rights, which sent one king to the block and another into exile, could give birth to colonies, which could be trusted in the future to resist any attempt to deprive them of those liberties which the great charters of the seventeenth century had declared to be the heritage of the Anglo-Saxon race.
The title of England and of her colonists to the land within the limits of the thirteen colonies was partially based upon conquest from other European countries, but mainly upon the right of occupation of territory theretofore only inhabited by uncivilized people. The Supreme Court in the case of Johnson vs. McIntosh,1 considered in detail the history of the colonizing efforts of the various European countries, and the authority upon which title to land in the New World rested. "On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle 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.
1 8 Wheaton, 543.
"The exclusion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring soil from the natives and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented.
'Those relations which were to exist between the discoverer and the natives were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them.
"In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as a just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty as independent nations were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle that discovery gave exclusive title to those who made it.
"While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy.
"The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles.
"Spain did not rest her title solely on the grant of the Pope. Her discussions respecting boundary, with France, with Great Britain, and with the United States, all show that she placed it on the rights given by discovery. Portugal sustained her claim to the Brazils by the same title.
"France, also, founded her title to the vast territories she claimed in America on discovery. However conciliatory her conduct to the natives may have been, she still asserted her right of dominion over a great extent of country not actually settled by Frenchmen, and her exclusive right to acquire and dispose of the soil which remained in the occupation of Indians. Her monarch claimed all Canada and Acadia, as colonies of France, at a time when the French population was very inconsiderable and the Indians occupied almost the whole country. She also claimed Louisiana, comprehending the immense territories watered by the Mississippi, and the rivers which empty into it, by the title of discovery. The letters patent granted to the Sieur Demonts, in 1603, constitute him Lieutenant-General, and the representative of the King of Acadia, which is described as stretching from the fortieth to the forty-sixth degree of north latitude; with authority to extend the power of the French over that country and its inhabitants; to give laws to the people; to treat with the natives, and enforce the observation of treaties, and to parcel out and give title to lands, according to his own judgment.