Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol I).djvu/60

 20 § 36. Our late acquisitions from Spain are of the same character; and the negotiations, which preceded those acquisitions, recognize and elucidate the principle, which has been received as the foundation of all European title in America.

§ 37. 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.

§ 38. 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 recognize the absolute title of the crown, subject only to the Indian right of occupancy, and recognize the absolute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians.