Note 220 — Chapter VII

The ground on which Protestant nations assert a natural right to the fruits of their discoveries in the New World is very different. They consider that the earth was intended for cultivation, and that Providence never designed that hordes of wandering savages should hold a territory far more than necessary for their own maintenance, to the exclusion of civilized man. Yet it may be thought, as far as improvement of the soil is concerned, that this argument would afford us but an indifferent tenure for much of our own unoccupied and uncultivated territory, far exceeding what is demanded for our present or prospective support. As to a right founded on difference of civilization, this is obviously a still more uncertain criterion. It is to the credit of our Puritan ancestors that they did not avail themselves of any such interpretation of the law of nature, and still less relied on the powers conceded by King James’s patent, asserting rights as absolute, nearly, as those claimed by the Roman See. On the contrary, they established their title to the soil by fair purchase of the aborigines; thus forming an honorable contrast to the policy pursued by too many of the settlers on the American continents. It should be remarked that, whatever difference of opinion may have subsisted between the Roman Catholic—or rather the Spanish and Portuguese—nations and the rest of Europe, in regard to the true foundation of their titles in a moral view, they have always been content, in their controversies with one another, to rest them exclusively on priority of discovery. For a brief view of the discussion, see Vattel (Droit des Gens, sec. 209), and especially Kent (Commentaries on American Law, vol. iii. lec. 51), where it is handled with much perspicuity and eloquence. The argument, as founded on the law of nations, may be found in the celebrated case of Johnson v. McIntosh. (Wheaton, Reports of Cases in the Supreme Court of the United States, vol. iii. p. 543, et seq.) If it were not treating a grave discussion too lightly, I should crave leave to refer the reader to the renowned Diedrich Knickerbocker’s History of New York (book 1, chap. 5) for a luminous disquisition on this knotty question. At all events, he will find there the popular arguments subjected to the test of ridicule; a test showing, more than any reasoning can, how much, or rather how little, they are really worth.