Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol I).djvu/48

 8 to retain possession of it, and to use it according to their own discretion. In a certain sense they were permitted to exercise rights of sovereignty over it. They might sell or transfer it to the sovereign, who discovered it; but they were denied the authority to dispose of it to any other persons; and until such a sale or transfer, they were generally permitted to occupy it as sovereigns de facto. But notwithstanding this occupancy, the European discoverers claimed and exercised the right to grant the soil, while yet in possession of the natives, subject however to their right of occupancy; and the title so granted was universally admitted to convey a sufficient title in the soil to the grantees in perfect dominion, or, as it is sometimes expressed in treatises of public law, it was a transfer of plenum et utile dominium.

§ 8. This subject was discussed at great length in the celebrated case of Johnson v. M'Intosh (8 Wheat. 543); and one cannot do better than transcribe from the pages of that report a summary of the historical confirmations adduced in support of these principles, which is more clear and exact than has ever been before in print.

§ 9. "The history of America," (says Mr. Chief Justice Marshall, in delivering the opinion of the Court,) 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,