USA > New York > History of the state of New-York : including its aboriginal and colonial annals, vol. pt 1 > Part 26
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See ante. p. 173.
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§ 55.] Foundation of Title to the Soil.
to Great Britain. By a secret treaty, executed about the same time, France ceded Louisiana to Spain, and Spain has since retroceded the same country to France. During these cessions and retrocessions, a great portion of the country was in possession of the Indians. This was also the case when the right of ultimate dominion was asserted by actual settle- ments. The charter to Sir Humphrey Gilbert, renewed in that to Sir Walter Raleigh; the charters of James I. suc- cessively vacated, surrendered, annulled, or renewed, to the north and south Virginia Companies, until that to the Duke of Lenox and others, in 1620, were all granted while the country was in occupation of the Indians. Under the last- mentioned patent, viz. to the Plymouth Company, New-Eng- land has, in a great measure, been settled. They conveyed to Henry Rosewell and others, in 1627, the territory of Mas- sachusetts, who, in 1628, obtained a charter of incorporation. Having granted a great part of New-England, the company made partition of the residue in 1635, and surrendered their charter to the crown. A patent was granted to Gorges, for Maine, which was alloted to him in the division of property. New-Hampshire was granted to Mason. Before the surren- der of the colony, now New-York, in 1664, the King had granted to the Duke of York, the country of New England as far as the Delaware bay. The Duke subsequently trans- fered New-Jersey to Lord Berkeley and Sir George Carteret. And yet, during these events, a great proportion of the coun- try was in possession of the Indians.' In 1663 the Crown granted to Lord Clarendon, and others, the country lying between the 36th degree of north latitude and river St. Ma- thes: in 1666 the proprietors obtained a new charter, granting to them that province, in the King's dominions in North America, from 36° 30' north latitude to the 29th degree, and from the Atlantic to the South sea. Thus our whole country, the soil as well as the right of dominion, was granted while occupied by the Indians. However extravagant the preten- tion may appear, of converting the discovery of an inhabited country into conquest ; if the principle has been asserted in VOL. I. 39
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Domain of New- York. [PART I.
the first instance, and afterwards sustained; if a country has been acquired and held under it ; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. Abstracted therefore from speculative opinion, conquests gives a title that Courts of Justice, at least of the conqueror, must recognise.
The law of conquest, founded in force, but limited by that humanity or policy which incorporates the conquered with the victorious, spares all wanton oppression, and protects title to property, whether the vanquished became incorporated or go- verned as a distinct society, was incapable of application to the aborigines of this country. The tribes of Indians were fierce savages, whose occupation was war, and whose subsis- tence was chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness ; to govern them as a distinct people, was impossible, because they were as brave and as high-spirited as they were fierce, and were ready to repel by arms every attempt on their indepen- dence. To mix with them was impossible. The Europeans were then compelled either to abandon the country, and all claim to their discovery, remain exposed to perpetual hazard of massacre, or enforce their claim by the sword. Wars, in which the whites were not always aggressors, ensued. Euro- pean policy, numbers, and skill, prevailed. As the white po- pulation advanced, that of the Indians necessarily receded. The country in the immediate neighbourhood of agricultu- ralists, became unfit for them. The game fled into thicker and more unbroken forests, and the Indians followed. The soil to which the crown originally claimed title, being no lon- ger occupied, was parcelled out according to the will of the sovereign power, and taken possession of by those claiming under. Hence the absolute title and exclusive right of ex- tinguishing that of the Indian occupants, having been vested in, and exercised by, government, cannot consequently exist at the same time in private individuals ; and hence also such ex- clusive right in government was incompatible with an abso- lute and complete title in the Indians. The concomitant prin-
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§ 55.] Foundation of Title to the Soil.
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ciple, that the Indians were to be considered merely as occu- pants, to be protected indeed while in peace, in the possession of their lands, but with an incapacity of transferring the ab- solute title to others, however opposed to natural right, and to the usages of civilized nations ; yet if it be indispensable to that system, under which the country has been settled, and bc adapted to the actual condition of the two people, it may per- haps be supported by reason, and certainly cannot be rejected by courts of justice. The British government, then ours, whose rights have passed to the United States, asserted a title to all the lands occupied by the Indians within the chartered limits of the British colonics. It asserted also a limited sove- reignty over them, and the exclusive right of extinguishing their title by occupancy. These claims have been established as far west of the Mississippi by the sword. The title to a vast portion of the lands we hold, originates in them. It is not for the courts of this country to question the validity of this title, or to sustain one which is incompatible with it, inasmuch as the United States have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They maintain the principle which has been received as the foundation of all European title in America. They hold and assert in themselves the title by which it was acquired, either by purchase or by conquest. By the treaty of peace that closed our revolutionary war, Great Britain relinquished all claim, not only to the govern- ment, but to the " propriety and territorial rights of the Uni- ted States," whose boundaries were fixed in the second article. By this treaty, the powers of government and the right to the soil, which had previously been in Great Britain, passed defi- nitely to these States. We had before taken possession of them by declaring independence ; but neither the declaration or treaty could give us more than that we before possessed, or to which Great Britain was before entitled. It has never been doubted that either the United States, or the several states, had a clear title to all the lands within the boundary lines de-
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Domain of New-York.
[PART I,
scribed in the treaty, subject only to the Indian right of occu- pancy, and that the exclusive power to extinguish that right was vested in that government, which might constitutionally exercise it. Thus Virginia, as early as 1779, passed au act declaring her exclusive right of pre-emption from the Indians, of lands within her chartered territory, and that no individual could purchase without authority from government, thus af- firming the broad principle, that the exclusive right to pur- chase was in government. States, having within their char- tered limits, territory covered with Indians, ceded them gene- rally to the United States, on conditions expressed in their deeds, which show that the soil, as well as jurisdiction, was ceded as a productive fund to the government of the Union. 'Thus lands in Illinois were within the chartered limits of Vir- ginia, and were ceded with the whole country northwest of Ohio river to the United States. They were occupied by nu- merous warlike tribes ; but the exclusive right of the United States to extinguish their title and grant the soil, has not becu doubted. Disputed boundaries settled by treaty of 1795, be- tween the United States and Spain, included territory occu- pied by Indians, claimed by both nations, but ceded to the United States. The magnificent purchase of Louisiana from France, was that of a country occupied by numerous inde- pendent tribes of Indians. Yet any attempt of others to in- trude into that country, would be considered an aggression which would justify war. Our late acquisitions from Spain are of the same character ; and the prior negotiations recog- nise and elucidate the principle which has been thus received as the foundation of European title, and that upon which the dominion to property now rests in this country.
In New-York, prior to the confederacy of the Union, the same principle as that which was confirmed in Virginia, was adopted as an article (37th,) of the constitution of 1777, and re-incorporated in that of 1822, (article 7, Sec. 12.) It rendered contracts for land with the Indians in this State, void, unless sanctioned by the legislature. Before and since the adoption of the constitution of the United States, various
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§ 55.] Foundation of Title to the Soil.
legislative provisions have been made, relative to the different Indian tribes and nations within the State. Judicial decisions have also followed, some of which* were deemed to run counter to the broad principle as settled in the last caset by the courts, and were therefore reversed directly or virtually. But it had been early settled, that possession of Indians did not invalidate a patent from the State, [ and that sales by Indians were void, made to the whites without legislative sanction.§ But in the final decision of the Court of Errors, it was considered, that from the constitutional provisions of the State, from the object and policy of the act relative to the different tribes and nations within this State, | declaring such purchases, (without legislative sanction,) a penal offence; from the construction in pari materia of the whole code of Indian statute law, from the special act of 1778 to that of 1801, (re- viving the first without its preamble,) up to that of 1810; from a review of the history of the six nations, from their first alliance with the Dutch, until the surrender of the colony to the English, and from the time when they placed themselves under the protection of the latter to the present period, having for more than a century been under their and our protection ; from the resolutions of Congress and public treaties, all com- bining to elucidate the principle of pre-eminent claim, and from the whole scope and policy of these constitutional and legislative provisions originating in the cautious and parental policy of government to protect the Indians in the possession of their lands from the frauds and imposition, superior cunning, and sagacity of the whites ; they were to be deemed
* Goodell vs. Jackson, 20 Johns. 188. Jackson vs. Sharp, 14 Johns. 472. Jackson vs. Brown, 15 Johns. 264. vide etiam Gilbert vs. Wood, 7 Johns. 290.
¡ Goodell vs. Jackson, 20 Johns. 693.
# Jackson, &c. es. Hudson, 3 Johns. 370.
4 Dana vs. Dana, 14 Johns. 181.
|| Sess. 36, ch. 92, et vide 3 Johns. 375. 9 Johns. 362. 7 Johns. 990.
14 Johns. 131.
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Domain of New-York. [PART I.
as incapable of alicning, as inopes concillii, and therefore, that although they are to be regarded not as citizens, but as independent allies, or alien communities, still continuing under the protection of government, and exempt from the civil municipal laws, which regulate citizens, (though not from the operation of our criminal code for crimes committed within our jurisdictional limits, though among themselves ;* ) never- theless, all contracts for lands, whether from a tribe or nation -- from Indians or from an individual Indian, whether such individual be an Indian heir, deriving from a military grant from government, (which, though presumed from lapse of time to have issued lawfully, must be construed as a grant to the Indian and his Indian heirs or assigns,) yet such is their total incapacity to convey to whites, that all contracts for lands are not only void, f but reciprocally inoperative, ¿ except such individual sales as shall first receive, pursuant to the act of the legislature, § the approval of the Surveyor General of the State, to be endorsed on the deed from such Indian. §
Such being the principles of international law as sanctioned before and since our revolution; such the municipal regulations of our general and State governments since, and such the foundation to the domain of this State ; no title derived from the grant of any Indians, unless received mediately from our government, and none from any foreign government can be recognised in our courts of justice, so long as all title is vested in, and must emanate from the United States, or a State, under whichsoever jurisdiction the land may be a part of its sovereignty. ||
* By the declaratory act of New-York, of April 12, 1822, Sess. 45, vide 2 Johns. cases, 314.
¡ 20 Johns. 693, 703, 705, 709-734.
į Vide 19 Jobns. 181.
i Sess. 36. ch. 92, scc. 55, et vide 14 Johns. 181, 15 Johns. 264, re- versed in 20 Johns. 693, but not on the point of cudorsement by Surveyor General.
Vide 12 Johns. 365. 81. 4 Johns. 182.
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Recapitulation.
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§ 56. .
HAVING finished the four divisions of the present part, a brief recapitulation of the whole will now be given. Under the form of four questions, which arose incidentally from the discoveries of Columbus, Americus, Cabots, and Varrazano,* we introduced, as a preliminary to the first inquiry, f a de- scription of those antiquities of New-York, which forin, in connexion with those of the Ohio, Mississippi, and Mexico, a series of ancient ruins, indicative of a degree of skill superior to that of any known tribes of North America .¡ In mqui- ring who were the authors of those ancient works, and whe- ther they were the ancestors of the indigines of this State,į we related, first, their traditions of the first creation and ori- gin of nations, tracing a similitude between theirs and the fa- bulous genealogical traditions of the Egyptians, Chinese, and Hlindoos.§ Secondly, their traditions of the migration of their ancestors into the territory of this State, and their con- quest over its preoccupants. | These, we learn from the tra- dition, were the authors of those works, the ruins of which we had traced, an extraordinary and civilized people,| who, ac- cording to other accounts, were whites. Whether they trans- migrated from Asia or Europe, who the ancestors of our pre- sent race of Indians were, and whence they came also, were inquiries which rendered a recurrence proper to the main question, viz : By what means was America originally peo- pled ? T
In its examination, we briefly reviewed the various hypo- theses of the learned. After alluding to the Scandinavian adventurers, who, it will appear under the third division.
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Conclusion.
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may have reached the coasts of New-York, we spoke of the Welsh Indions, and presented some facts, (for instance, an in- stitution resembling that of free masonry) tending to strengthen the conjecture, that Wales may have contributed a portion of the aboriginal population,* even without the necessity of in- sisting upon the authenticity of the account of Prince Ma- doc's adventures.f To corroborate the probability that Eu- rope as well as Asia supplied emigrants, we stated that the ancient fortifications of this State resembled the British and Danish ; that Europe, as well as Asia, had its northern Tar- tars, descendants of the Scythians ; that they may have suc- cessively poured into this continent from the northwest of Eu- rope and the northeast of Asia, and alternately become lords of the ascendant, making even the territory of this State the theatre of their warlike and barbarous achievements; and lastly, that although the Malays of Austral Asia may have penetrated into the southern part of this continent, its northern section re- ceived the Tartars from the hyperborean regions of Europe and Asia.] Among these, were the victorious ancestors of the Iroquois and Lenni Lennape, and the civilized Alligewi, whom they vanquished and expelled. The former were pro- bably Tartars from Asia, the latter of the Gothic stock from Europe.§ We have shown in what manner they may have transmigrated.|| We have corroborated our statement by the opinions of philosophers, that they, as well as other people, though in less proportions, may by accident, as well as through design, have passed to this continent from the various quar- ters of the old world ; and although the learned vary in opi- nion as to the period of the original migration, whether before or since the deluge, whether the aborigines first came from Asia, Europe, or Africa, whether among them were Israelites of the ten tribes, Phoenicians, Carthaginians, and Christians ; yet there is a most respectable concurrence in opinion, that the
7 18. ៛ $ 2, 9. . 1 $ 10 to 19. # 4 12. 13.
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Recapitulation. 313
majority of the Indians of the present race are the offspring of Tartars, principally from Asia .*
Other learned writers, viewing the natural obstacles which now appear, as insuperable to the passage of animals, maintain that former unions existed between this and the other conti- nents ;f that those connexions were destroyed by the effects of volcanoes and earthquakes ; that the now sunken Atlantis of the ancients was not the dream of their fancy, but an im- mense island, whose inhabitants were the authors of the in- scription upon the Dighton rock of Massachusetts.}
Another class still unsatisfied with prior theories, have di- rected their philological researches into the structure of Indian idioms, endeavouring to ascertain their identity by compari- son with the languages of the old world ;§ while lastly, a few, in order to close all argument, flippantly allege, that the abo- rigines were strictly natives of the soil.
From a review of the whole question, we have formed our conclusion, without insisting upon its infallibility. On the contrary, we have offered it as merely hypothetical. || We have also made such reflections as were suggested by a retrospect of those revolutions which have shaken this continent to its foundation ; and from the experience of the past. we have deduced a probability, that the most signal revo- lutions may take place in the progress of ages ; that the ter- ritory of this State, which has been even within two centuries, the theatre for the display of most remarkable changes, may be destined, in common with the other parts of this continent, to undergo those of a far more astonishing character. T
The second division embraced the inquiry whether America was known to Europe before Columbus .** An answer to this, the reader will perceive, had been principally anticipated un- der the first division. We however superadded a few remarks respecting the maritime knowledge and skill of the ancients,
* 12 to 16, and p. 296, n. + ib. : 17. į 917. $$ 10. 6 :19. $ $ 12, 20.
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Conclusion.
[PART I.
and also observed, that although they may have had vague ideas of a western continent, and though it was probable that this continent was visited by Europeans. many ages before . Columbus, yet the knowledge which prevailed among his contemporaries, was not such as to deprive him of the ho- nour of originality in projecting a discovery which required his extraordinary qualifications to accomplish .*
The effect of his discovery upon the commercial and ultra marine relations of European powers, constituted the subject of our third division ;f under which, however, we have di- rected the attention of readers to those European voyages of discovery, and those conflicting claims to the North Ameri- can continent, which had a relation to that portion of it em- braced within the colonial limits of New-York. But under the question, who first discovered the coasts and harbours of this State, we gave a preliminary account of the Scandinavi- an or Norrman voyagest in the eleventh and twelfth centuries, and having submitted to our readers the probability that New- York was a part of ancient Vinland, § we then proceeded to describe the more modern European voyages to our coasts and harbours. First, the voyage, five years after Columbus, of the Cabots, || whose alleged discovery of our coasts, form- ed a prominent ground for the claim of England to this colony; though the Monarch ( Henry VII.) who commissioned the Cabots, and those who succeeded him upon the English throne for nearly a century afterwards, did not assert their claims by actual colonization upon any part of North Ame- rica.
From the selfish views of Henry VII. we passed with plea- sure to the more enterprising policy, but with abhorrence to the characteristic cruelty of the Spaniards, ** whose claim to North America, by virtue of the pope's gift, was insisted upon with pertinacity, though they pretended also to have first dis- 'covered Florida, and it has been conjectured that they carly
* ib. + + 38. $ 1 27. : vib.
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visited the Hudson and the St. Lawrence .* These pre- tensions, particularly that founded on the pope's gift, were . disregarded by Henry VIII. of England, and Francis I. of France ;f both of whom sent ships of discovery to North America. We confined our attention especially to two voyages under the auspices of the latter monarch, one of which it has been conjectured, reached the bay of New-York. and the other it is asserted, discovered the St. Lawrence : viz. those of Varrazano,f and Cartier.§ The interviews of these adventurers with the natives, and particularly of Cartier with our Iroquois, prove, as well as the intercourse of all the first European visiters, the unsophisticated character, and friendly and humane conduct of the natives. It has ap- peared, that from the fate of Varrazano, the project of coloni- zation slept in France, until Cartier made his voyages, || and that the unsuccessful issue of these, combined with the dis- tracted condition of France, suspended North American colonizing adventure, (except that of the persecuted and un- fortunate admiral Coligna, in the reign of Charles IX.) until it was revived under the enlightened policy of Henry the Great.T
From the foregoing events, and others which we have briefly enumerated, we have deduced the causes why a century elapsed after the Cabots, before any effectual revival of the spirit of colonization. We said that a secret cause, (arising from religious persecution,) was in progressive operation, which was to secure ultimately the establishment of colonies, but that a powerful and prior impulse was to arise at the close of the sixteenth, and commencement of the seventeenth centu- ry, from the enterprising policy of those illustrious contempo- raries Queen Elizabeth, Henry IV., and Prince Maurice .** The first effectual attempt on the part of the English was in the reign of Elizabeth, whose patents to Sir Humphry
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Conclusion. [PART L
Gilbert and Sir Walter Raleigh, were followed by several ex- peditions to the northern and southern parts of Virginia." The disastrous issue of those enterprises, as well as the mis- fortunes of their patrons, suspended the project of coloniza- tion, f until Bartholomew Gosnold, one year before the death of Elizabeth, and seven years before the discovery of the Hud- son river, undertook to plant a colony, and actually erected the first house within the limits of the province of New-York.j We have seen that Gosnold's enterprise was succeeded by that of Pring and Weymouth in the same direction,s and that their combined accounts of the beauty and fertility of the regions which they had visited, roused the dormant spirit of the English, many of whom zealously promoted colonies. On the accession therefore of King James to the throne of Eng- land, new patents were granted to new companies, by virtue of which fresh colonies were sent to south and north Virginia ; the former of which enjoyed a precarious existence, the latter actually abandoned the country. Those patents included the territory of this state, and interfered with the claims of France and of Spain, whose pretensions were revived and discussed even in 1609, while Hudson was engaged in exploring the New-York bay and river.||
·
With regard to France, we have seen that though the true era of French commercial policy has been dated in the reign of Lewis XIV. yet that the prior reign of Henry IV. was dis- tinguished for several voyages to North America. The pa- tent granted by the king to Des Monts, embraced this State. Under them, Samuel Champlain sailed to Canada, founded Quebec, and in the course of an expedition against our Iro- quois Indians, discovered Lacus Irocoisa (since called by the name of its discoverer,) fought those Indians in a battle near Ticonderoga, and thus introduced to them a knowledge of gunpowder during the same year that Hudson entered the southern waters of our State, and gave to the same nation of
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