Jackson ex dem. Sparkman v. Porter. to dispose of the soil at their own will to whomsoever they pleased, was denied. The European nations, by whose subjects the discoveries were made, respected the rights of the natives as occupants, but asserted the ultimate dominion to be in themselves; and as a necessary consequence thereof, claimed and exercised the power of granting the soil while yet in the possession of the Indians. And such grants have been universally understood to convey a title to the grantees, subject only to the Indian right of occupancy. The United States have adopted and acted upon the same principles. By the revolution, the power of government and right of soil which had been previously in Great Britain, passed definitively to these states. And it has never been doubted but 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 of peace, 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. And the practical assertion of this right is seen in the policy which has governed the United States and the individual states, in prohibiting all purchases of the Indians by individuals in their own right. And the Indians being mere occupants, are deemed incapable of transferring an absolute title to others, This occupancy is not incompatible with a seisin in fee in the state. A purchaser, from the natives, at all events, could acquire only the Indian title, and must hold under them and according to their laws. The grant must derive its efficacy from their will, and if they choose to resume it and make a different disposition of it, Courts cannot protect the right before granted. The purchaser incorporates himself with the Indians, and the purchase is to be considered in the same light as if the grant had been made to an Indian; and might be resumed by the tribe, and granted over again at their pleasure. Jackson ex dem. Sparkman v. Porter. If this be the view which we are to take of the Indian right of occupancy, the claim of John Stedman considered in the most favourable manner, could never have been any thing more than a mere right of possession, subject to be reclaimed, and extinguished at the will of the Indians, and which has been done, as will be seen hereafter. But it may very well be questioned, whether this claim is entitled even to so favourable a consideration. As the claim of Stedman rests upon an Indian deed, confirmed by Sir William Johnson, it may be proper to inquire into the power of Sir William Johnson on this subject, in order to ascertain what is to be understood by his confirmation. The deed is not before us, and as the cause was taken from the jury, it must now be admitted, that it was unexceptionable in point of form. And as Stedman disclaimed having any other title than that which was derived from the Indian deed, and Sir William Johnson's confirmation, unless he had authority to pass the title, none could have been vested in Stedman. The pretended confirmation of Sir William Johnson is as follows: "Fort Niagara, September 20th, 1763. I William Johnson, commander-in-chief of the army, at and about fort Niagara, and superintendent of Indian affairs, do certify and approve the within deed, given by the chiefs and warriors of the Seneca nation of Indians to John Stedman.” There must be some mistake with respect to dates. The deed is said to have been given in the year 1764, and the confirmation, as it is called, bears date the preceding year. But the endorsement does not purport to be any thing more than a certificate, approving of the purchase; and does not profess to be an act which shall complete, or transfer any title and if Sir William Johnson had no such power, a construction ought not to be given to his acts, which involves a violation of his duty. Let us then briefly inquire what were his powers in this respect. Jackson ex dem. Sparkman v. Porter. Sir John Johnson in his testimony says, that from the year 1755, to the year 1774, Sir William held the offices of superintendent of Indian affairs, and Colonel of the Six United Nations of Indians, and was one of the council of the Governor of the colony of New-York. That his duty as superintendent of Indian affairs, required him to hold treaties with the Six Nations of Indians, and all the Indians of the Northern District, and to superintend all purchases of land, from them or either of them. Here is certainly no power to transfer any title. A grant from the crown, or from the colonial Governor, was necessary for this purpose. But whatever authority Sir William Johnson might have had in this respect previous to the year 1762, it must have ceased after that time. Early in that year (according to the testimony of Sir John Johnson,) he received from the Lieut. Governor of the province of New-York, instructions in relation to the purchase of land from the Indians, a copy of which is given as one of the exhibits in the cause. There is a mistake in the reference; but the identity of the document was admitted on the argument, and this was the plaintiff's evidence, and no objection taken to its admissibility. They purported to be additional instructions, and although addressed to the Governor of the province, must have been sent to the superintendent of Indian affairs, to regulate and govern his conduct. These instructions were directed to be made public by proclamation, which was accordingly issued by Lieut. Governor Colden, in February, 1762, in which the instructions were set out at large. This was offered on the part of the defendant, and objected to, but admitted to be read to the Court, on the argument of the motion for a nonsuit. It is not very important to inquire into the regularity of this course, for the proclamation contains nothing more than the instructions at large, the material parts of which had been given in evidence on the part of the plaintiff; and are sub Jackson ex dem. Sparkman v. Porter. stantially reiterated in the proclamation of the King, of the 7th of October, 1763; which has been published under the sanction and authority of the United States. These instructions and proclamations, recite the evils and abuses that had arisen, by reason of purchases made of the Indians, and the passing of grants by the colonial Governors; and strictly enjoins and commands the Governor, Lieut. Governor, President of the council, or commander-in-chief of the province of New-York, upon any pretence whatever, and upon pain of forfeiting their office, not to pass any grant to any person whatever, of any land within, or adjacent to, the territories possessed or occupied by the Indians, or the property or possession of which has at any time been reserved to, or claimed by them: And also prohibiting the granting of any license to purchase land of the Indians, but to send all applications made for that purpose, home to the King, and forbidding any private person making any purchase of the Indians: But that if at any time they should be inclined to dispose of their land, the same should be purchased for the crown, at some public meeting of the Indians, to be held for that purpose by the Governor, or commander-in-chief of the colony where the land shall lie and requiring all persons who had wilfully or inadvertently seated themselves upon any lands, which had not been ceded to, or purchased by the crown, forthwith to remove therefrom. After these instructions were made known here, it is very evident that no power existed in this country, so to authorize and confirm any purchase from the Indians, as to transfer the title to the land. Nor could it be permitted, to ask a jury to presume any such attempt to transfer the title, when it would imply a breach of trust, and a violation of duty in the officer who should thus act. The pretended confirmation therefore of Sir William Johnson, cannot be considered any c 1 Vol. L. U. S. 443. Jackson ex dem. Sparkman v. Porter. thing more than an approval of the application for the purchase, to be sent home for the sanction and ratification of the King; and coming within what is stated by Sir John Johnson as having been a part of his duty, to superintend purchases made of the Indians. The authority of the King to regulate and control purchases from the Indians within his colonies, was not questioned on the argument, and cannot be denied. Any purchase made by Stedman in violation of such regulations, must of course be void, and he could acquire no right whatever thereby ; not even the Indian right of occupancy; and he must have been an intruder, by any entry made under such purchase. But admitting him to have obtained a rightful possession under such purchase, it must be restricted to his actual occupation, and can be of no avail, at all events in this suit. His first possession was near fort Schlosser, which is, according to the testimony, about one mile from the defendant's possession. And as late as the year 1771, according to the testimony of one of the witnesses, he had only cleared and improved about four acres; and long before his improvements extended to any of the land in possession of the defendant, the Indians had resumed their right of occupancy, and ceded it by treaty to the crown. That such is the light in which Stedman's possession is to be viewed, necessarily results from the well settled rule, that where a man enters into land, having title, his seisin is not bounded by his actual possessions, but is held to be co-extensive with his title. But where he enters without title, his seisin is confined to his possessions by metes and bounds. It has already been shown, that admitting a purchaser from the Indians acquires their right of occupancy, the Indians may whenever they choose, resume it, and make a different disposition of the land, which in the present case has been |