Page:The Red Man and the White Man in North America.djvu/243

Rh their successive resting places, and to move on. So that though the whites have on all occasions made the most of the plea that they only spoiled spoilers, it is plain that this alone would not have been relied upon as justifying them in disputing the sufficiency of the aboriginal tenure of territory. Looking beyond this, therefore, we find that there were two other grounds of defence and of privilege assumed by the Europeans: first, some shape of the assumption that the heathenism of the Indians impaired their natural rights; and second, that they made no such use and improvement of the soil as to secure a title to it.

The tenure of land among the ancient and some modern migratory hordes of the Eastern World was similarly loose and undefined with that of our aborigines. When the Israelites wished to justify their conquest of Canaan, they said that they were only reclaiming an old ancestral possession, of which in the absence of written title-deeds there were three expressive tokens, — the altar on the hill of Bethel, the well of Jacob, and the family sepulchre in the field of Machpelah.

It would be irrelevant to quote here, and to institute an application of, the principles advanced in the treatises of Maine and other recent publicists on the conditions regulating, or rather allowing, the occupancy and use of wild land by wild men, as they simply follow the law of Nature, personal liberty, and impulses of their own, in roaming or resting here or there. The principles of natural law may suggest the theories which are to be drawn from or applied to the kind of tenure to territory thus claimed or held. But the theories, after all, have to be constructed from the facts in any instance of large application. In the case of our own aborigines we have as signal and significant a one as could be proposed for a precedent. All the conditions which could ever present themselves together for raising all the terms of the question as to the natural and acquired rights of barbarians found in temporary occupancy of wild