property essay

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Syllabus for LS 140 Pride and Prejudice John Locke

Property in Eve Online Rousseau on Property and Inequality

Karl Marx - The Communist Manifesto J.S. Mill - Principles of Political Economy

George - Progress and Poverty George - Ode to Liberty Finkelman -Batter Up

Popov v. Hayashi Treaty of Waitangi Johnson v. McIntosh Dawes Act

Somerset v. Stewart Bryan v. Walton State v. Mann State v. Boyce

Rose - Property Law and the Rise, Life, and Demise of Racially Restrictive Covenants

Shelley v. Kraemer Bell v. Maryland

Sumner - W hat Social Classes Owe to Each Other Veblen - Theory of the Leisure Class

Roe - Backlash Cassidy review of Thomas Piketty, Capital in the Twenty-first Century

Ostrom - Sustainable Development Boomer v. Atlantic Cement

Dan Ariely Ted Talk Dan Pink Ted Talk Pennsylvania Coal v. Mahon

Just v. Marinette County Kelo v. New London

Reich - The New Property - Read pp 771-777 Goldberg v. Kelly

Lessig - Free Culture - Read Chap. 5 Lessig - Remix (Optional Source)

SF Homeless Project

Johnson v. M’Intosh, 21 U.S. 543, 5 L.Ed. 681, 8 Wheat. 543 (1823)

JOHNSON and GRAHAM'S LesseeJOHNSON and GRAHAM'S Lessee

v.v.

WILLIAM M'INTOSH.WILLIAM M'INTOSH.

March 10, 1823

ERROR to the District Court of Illinois. This was an action of ejectment for lands in the State and District of

Illinois, claimed by the plaintiffs under a purchase and conveyance from the Piankeshaw Indians, and by the

defendant, under a grant from the United States. It came up on a case stated, upon which there was a judgment

below for the defendant. The case stated set out the following facts:

Mr. Chief Justice MARSHALLMr. Chief Justice MARSHALL delivered the opinion of the Court.

The plaintiffs in this cause claim the land, in their declaration mentioned, under two grants, purporting to be

made, the first in 1773, and the last in 1775, by the chiefs of certain Indian tribes, constituting the Illinois and the

Piankeshaw nations; and the question is, whether this title can be recognised in the Courts of the United States?

The facts, as stated in the case agreed, show the authority of the chiefs who executed this conveyance, so far

as it could be given by their own people; and likewise show, that the particular tribes for whom these chiefs acted

were in rightful possession of the land they sold. The inquiry, therefore, is, in a great measure, confined to the

power of Indians to give, and of private individuals to receive, a title which can be sustained in the Courts of this

country.

As the right of society, to prescribe those rules by which property may be acquired and preserved is not,

and cannot be drawn into question; as the title to lands, especially, is and must be admitted to depend entirely on

the law of the nation in which they lie; it will be necessary, in pursuing this inquiry, to examine, not singly those

principles of abstract justice, which the Creator of all things has impressed on the mind of his creature man, and

which are admitted to regulate, in a great degree, the rights of civilized nations, whose perfect independence is

acknowledged; but those principles also which our own government has adopted in the particular case, and given

us as the rule for our decision.

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 ascendency. 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.

The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of

acquiring the 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 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.

* * *

No one of the powers of Europe gave its full assent to this principle, more unequivocally than England. The

documents upon this subject are ample and complete. So early as the year 1496, her monarch granted a

commission to the Cabots, to discover countries then unknown to Christian people, and to take possession of them

in the name of the king of England. Two years afterwards, Cabot proceeded on this voyage, and discovered the

continent of North America, along which he sailed as far south as Virginia. To this discovery the English trace their

title.

* * *

Thus, all the nations of Europe, who have acquired territory on this continent, have asserted in themselves,

and have recognised in others, the exclusive right of the discoverer to appropriate the lands occupied by the

Indians. Have the American States rejected or adopted this principle?

By the treaty which concluded the war of our revolution, Great Britain relinquished all claim, not only to the

government, but to the 'propriety and territorial rights of the United States,' whose boundaries were fixed in the

second article. By this treaty, the powers of government, and the right to soil, which had previously been in Great

Britain, passed definitively to these States. We had before taken possession of them, by declaring independence;

but neither the declaration of independence, nor the treaty confirming it, could give us more than that which we

before possessed, or to which Great Britain was before entitled. It *585 *585 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 described in the

treaty, subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right, was

vested in that government which might constitutionally exercise it.

Virginia, particularly, within whose chartered limits the land in controversy lay, passed an act, in the year

1779, declaring her 'exclusive right of pre- emption from the Indians, of all the lands within the limits of her own

chartered territory, and that no person or persons whatsoever, have, or ever had, a right to purchase any lands

within the same, from any Indian nation, except only persons duly authorized to make such purchase; formerly

for the use and benefit of the colony, and lately for the Commonwealth.' The act then proceeds to annul all deeds

made by Indians to individuals, for the private use of the purchasers.

Without ascribing to this act the power of annulling vested rights, or admitting it to countervail the

testimony furnished by the marginal note opposite to the title of the law, forbidding purchases from the Indians, in

the revisals of the Virginia statutes, stating that law to be repealed, it may safely be considered as an unequivocal

affirmance, on the part of Virginia, of the broad principle which had always been maintained, that the exclusive

right to purchase from the Indians resided in the government.

In pursuance of the same idea, Virginia proceeded, at the same session, to open her *586 *586 land office, for the

sale of that country which now constitutes Kentucky, a country, every acre of which was then claimed and

possessed by Indians, who maintained their title with as much persevering courage as was ever manifested by any

people.

The States, having within their chartered limits different portions of territory covered by Indians, ceded that

territory, generally, to the United States, on conditions expressed in their deeds of cession, which demonstrate the

opinion, that they ceded the soil as well as jurisdiction, and that in doing so, they granted a productive fund to the

government of the Union. The lands in controversy lay within the chartered limits of Virginia, and were ceded

with the whole country northwest of the river Ohio. This grant contained reservations and stipulations, which

could only be made by the owners of the soil; and concluded with a stipulation, that 'all the lands in the ceded

territory, not reserved, should be considered as a common fund, for the use and benefit of such of the United

States as have become, or shall become, members of the confederation,' &c. 'according to their usual respective

proportions in the general charge and expenditure, and shall be faithfully and bona fide disposed of for that

purpose, and for no other use or purpose whatsoever.'

The ceded territory was occupied by numerous and warlike tribes of Indians; but the exclusive right of the

United States to extinguish their title, and to grant the soil, has never, we believe, been doubted.

After these States became independent, a controversy subsisted between them and Spain respecting

boundary. By the treaty of 1795, this controversy was adjusted, and Spain ceded to the United States the territory in

question. This territory, though claimed by both nations, was chiefly in the actual occupation of Indians.

The magnificent purchase of Louisiana, was the purchase from France of a country almost entirely occupied

by numerous tribes of Indians, who are in fact independent. Yet, any attempt of others to intrude into that country,

would be considered as an aggression which would justify war.

Our late acquisitions from Spain are of the same character; and the negotiations which preceded those

acquisitions, recognise and elucidate the principle which has been received as the foundation of all European title

in America.

The United States, then, have unequivocally acceded to that great and broad rule by which its civilized

inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They

maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of

occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty, as the

circumstances of the people would allow them to exercise.

The power now possessed by the government of the United States to grant lands, resided, while we were

colonies, in the crown, or its grantees. The validity of the titles given by either has never been questioned in our

Courts. It has been exercised uniformly over territory in possession of the Indians. The existence of this power

must negative the existence of any right which may conflict with, and control it. An absolute title to lands cannot

exist, at the same time, in different persons, or in different governments. An absolute, must be an exclusive title, or

at least a title which excludes all others not compatible with it. All our institutions recognise the absolute title of the

crown, subject only to the Indian right of occupancy, and recognise the absolute title of the crown to extinguish

that right. This is incompatible with an absolute and complete title in the Indians.

We will not enter into the controversy, whether agriculturists, merchants, and manufacturers, have a right,

on abstract principles, to expel hunters from the territory they possess, or to contract their limits. Conquest gives a

title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals

may be, respecting the original justice of the claim which has been successfully asserted. The British government,

which was then our government, and whose rights have passed to the United States, asserted title to all the lands

occupied by Indians, within the chartered limits of the British colonies. It asserted also a limited sovereignty over

them, and the exclusive right of extinguishing the title which occupancy gave to them. These claims have been

maintained and established as far west as the river Mississippi, by the sword. The title *589 *589 to a vast portion of the

lands we now 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.

Although we do not mean to engage in the defence of those principles which Europeans have applied to

Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people

whose rights have been wrested from them.

The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity,

however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly

oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. Most

usually, they are incorporated with the victorious nation, and become subjects or citizens of the government with

which they are connected. The new and old members of the society mingle with each other; the distinction

between them is grandually lost, and they make one people. Where this incorporation is practicable, humanity

demands, and a wise policy requires, that the rights of the conquered to property should remain unimpaired; that

the new subjects should be governed as equitably as the old, and that confidence in their security should gradually

banish the painful sense of being separated from their ancient connexions, and united by force to strangers.

When the conquest is complete, and the conquered inhabitants can be blended with the conquerors, or

safely governed as a distinct people, public opinion, which not even the conqueror can disregard, imposes these

restraints upon him; and he cannot neglect them without injury to his fame, and hazard to his power.

But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose

subsistence was drawn 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 independence.

What was the inevitable consequence of this state of things? The Europeans were under the necessity either

of abandoning the country, and relinquishing their pompous claims to it, or of enforcing those claims by the

sword, and by the adoption of principles adapted to the condition of a people with whom it was impossible to mix,

and who could not be governed as a distinct society, or of remaining in their neighbourhood, and exposing

themselves and their families to the perpetual hazard of being massacred.

Frequent and bloody wars, in which the whites were not always the aggressors, unavoidably ensued.

European policy, numbers, and skill, prevailed. As the white population advanced, that of the Indians necessarily

receded. The country in the immediate neighbourhood of agriculturists 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 longer occupied by its ancient inhabitants, was parcelled out according to the will of the sovereign

power, and taken possession of by persons who claimed immediately from the crown, or mediately, through its

grantees or deputies.

That law which regulates, and ought to regulate in general, the relations between the conqueror and

conquered, was incapable of application to a people under such circumstances. The resort to some new and

different rule, better adapted to the actual state of things, was unavoidable. Every rule which can be suggested will

be found to be attended with great difficulty.

However extravagant the pretension of converting the discovery of an inhabited country into conquest may

appear; if the principle has been asserted in 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. So, too, with respect to the concomitant principle, that the Indian

inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of

their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be

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 be adapted to the actual condition of the two people, it may, perhaps, be

supported by reason, and certainly cannot be rejected by Courts of justice.

* * *

After bestowing on this subject a degree of attention which was more required by the magnitude of the

interest in litigation, and the able and elaborate arguments of the bar, than by its intrinsic difficulty, the Court is

decidedly of opinion, that the plaintiffs do not exhibit a title which can be sustained in the Courts of the United

States; and that there is no error in the judgment which was rendered against them in the District Court of Illinois.

Judgment affirmed, with costs.

James Madison

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