Canada and the Law of Nations: A Selection of Cases in International Law, Affecting Canada or Canadians, Decided by Canadian Courts, by Certain of the Higher Courts in the United States and Great Britain and by International Tribunals

By Norman MacKenzie; Lionel H. Laing | Go to book overview

B. JURISDICTION OVER TERRITORY

1. DISCOVERY

Martin v. Waddell
Supreme Court of the United States, 1842 16 Peters 370

English possessions in America claimed by right of discovery. The matter in dispute here concerned rights to the oyster fishery in public rivers and bays of New Jersey by title under charters granted by Charles the Second to his brother the Duke of York in 1664 and 1674.

Mr. Justice TANEY:

. . . The English possessions in America were not claimed by right of conquest, but by right of discovery. For, according to the principles of international law, as understood by the then civilized powers of Europe, the Indian tribes in the new world were regarded as mere temporary occupants of the soil, and the absolute rights of property and dominion were held to belong to the European nation by which any particular portion of the country was first discovered. Whatever forbearance may have been sometimes practised towards the unfortunate aborigines, either from humanity or policy, yet the territory they occupied was disposed of by the governments of Europe, at their pleasure, as if it had been found without inhabitants. The grant to the Duke of York, therefore, was not of lands won by the sword; nor were the government or laws he was authorized to establish intended for a conquered people.

The country mentioned in the letters-patent was held by the king in his public and regal character, as the representative of the nation, and in trust for them. The discoveries made by persons acting under the authority of the government were for the benefit of the nation; and the crown, according to the principles of the British constitution, was the proper organ to dispose of the public domains; and upon these principles rest the various charters and grants of territory made on this continent. The doctrine upon this subject is clearly stated in the case of Johnson v. McIntosh, 8 Wheat. 595. In that case, the court, after stating it to be a principle of universal law, that an uninhabited country, if discovered by a

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Canada and the Law of Nations: A Selection of Cases in International Law, Affecting Canada or Canadians, Decided by Canadian Courts, by Certain of the Higher Courts in the United States and Great Britain and by International Tribunals
Table of contents

Table of contents

  • Title Page iii
  • Foreword v
  • Introduction vii
  • Editors' Preface xi
  • Table of Contents xvii
  • List of Abbreviations xxvii
  • A. Canada, an International Entity 1
  • B. Jurisdiction Over Territory 30
  • C. Status of Indians 180
  • D. Individuals in International Law 221
  • E. International Rights and Duties 335
  • F. Private International Law 402
  • G. War and Its Effects 441
  • Index 555
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