ohnson & Graham's Lessee v. McIntosh, 21 U.S.
543 the Native American tribes, held title to the the land. He
(1823)
 Opinions
 Syllabus
 Case
Justia Opinion Summary and Annotations
Annotation
Primary Holding
Land transfers from Native Americans to private
individuals are void.
Facts
This action for ejectment was based on a land dispute
after Thomas Johnson, a Supreme Court Justice,
bought land from Native Americans in the Piankeshaw
tribe. His descendants inherited the land after
Johnson's death and leased it to individuals who
brought the action against William M'Intosh. The federal
government had given M'Intosh a land patent to
allegedly the same land, although in reality it appears
that the properties were actually separate. The parties
thus brought this litigation in order to obtain a judgment
on priority rights to property more generally.
Ruling that the Native American tribe did not have the
right to convey the land, the federal district court held
that Johnson's initial purchase and the chain of title
stemming from it were invalid.
Note:Marshall;s reliance on international law as basis
for disco very doxtrine.
Opinions
Majority
 John Marshall
 Bushrod Washington
 Henry Brockholst Livingston
 William Johnson, Jr.
 Thomas Todd
 Gabriel Duvall
 Joseph Story
In an unanimous opinion, Marshall used historical
analysis to find that only the government, rather than
argued that the patterns of discovery during the
European colonization of the New World meant that
each European nation gained sovereignty (and also
title) over the land that it discovered. This trumped the
right of occupancy of the Native American tribes, at
least with regard to the specific colonizing power. In the
situation of the U.S., this right belonged to the British
when they first acquired colonies. The federal
government then inherited the right from Great Britain
after the American Revolution. Native Americans
cannot sell their land except to the federal government.
Case Commentary
This case created a distinction between the right of
occupancy and the right of ownership that persists in
U.S. jurisprudence concerning Native American lands.
Economists have pointed out that limiting the right to
purchase Native American land to the federal
government allows it to be sold at the lowest possible
prices because there is no competition. The patronizing
tone of the opinion has fallen into disfavor as Native
Americans have come to receive more sympathy from
the legal academy, but its holding remains valid.
OHNSON V. McINTOSH
8 Wheat. 543 (1823)
ERROR to the District Court of Illinois. This was an
action of ejectment for lands in the State and District of
Illinois, claimed by the plaintiffs under a purchase and
conveyance from the Piankeshaw Indians, and by the
defendant, under a grant from the United States. It
came up on a case stated, upon which there was a
judgment below for the defendant...
... On the part of the plaintiffs, it was contended, 1. That
upon the facts stated in the case, the Piankeshaw
Indians were the owners of the lands in dispute, at the
time of executing the deed of October 10th, 1775, and
had power to sell. But as the United States had
purchased the same lands of the same Indians, both
parties claim from the same source. It would seem,
therefore, to be unnecessary, and merely speculative,
to discuss the question respecting the sort of title or
ownership, which may be thought to belong to savage
tribes, in the lands on which they live. Probably,
however, their title by occupancy is to be respected, as
much as that of an individual, obtained by the same
right, in a civilized state. The circumstance, that the
members of the society held in common, did not affect
1
the strength of their title by occupancy. fn-a In the
memorial, or manifesto, of the British government, in
1755, a right of soil in the Indians is admitted. It is also
admitted in the treaties of Utrecht and Aix la Chapelle.
The same opinion has been expressed by this Court,fn-b
and by the Supreme Court of New-York. fn-c In short, all,
or nearly all, the lands in the United States, is holden
under purchases from the Indian nations; and the only
question in this case must be, whether it be competent
to individuals to make such purchases, or whether that
be the exclusive prerogative of government...
fn-a Grotius, de J. B. ac P. 1. 2. c. 2. s. 4. 1. 2. c.
24. s. 9. Puffen. 1. 4. c. 5. s. 1. 3.
fn-b Fletcher v. Peck, 6 Cranch's Rep. 646.
fn-c Jackson v. Wood, 7 Johns. Rep. 296.
... On the part of the defendants, it was insisted, that the
uniform understanding and practice of European
nations, and the settled law, as laid down by the
tribunals of civilized states, denied the right of the
Indians to be considered as independent communities,
having a permanent property in the soil, capable of
alienation to private individuals. They remain in a state
of nature, and have never been admitted into the
general society of nations. fn-a All the treaties and
negotiations between the civilized powers of Europe
and of this continent, from the treaty of Utrecht, in 1713,
to that of Ghent, in 1814, have uniformly disregarded
their supposed right to the territory included within the
jurisdictional limits of those powers. fn-b Not only has the
practice of all civilized nations been in conformity with
this doctrine, but the whole theory of their titles to lands
in America, rests upon the hypothesis, that the Indians
had no right of soil as sovereign, independent states.
Discovery is the foundation of title, in European nations,
and this overlooks all proprietary rights in the natives. fn-
c The sovereignty and
fn-a Penn v. Lord Baltimore, 1 Ves. 445. 2
Rutherforth's Inst. 29. Locke, Government, b. 2. c. 7. s.
87 -- 89. c. 12. s. 143. c. 9. s. 123 -- 130. Jefferson's
Notes, 126. Colden's Hist. Five Nations, 2 -- 16. Smith's
Hist. New-York, 35 -- 41. Montesquieu, Esprit des Loix,
1. 18. c. 11, 12, 13. Smith's Wealth of Nations, b. 5. c.
1.
fn-b 5 Annual Reg. 56. 233. 7 Niles' Reg. 229.
fn-c Marten's Law of Nations, 67. 69. Vattel, Droit
des Gens. 1. 2. c. 7. s. 83. 1. 1. c. 18. s. 204, 205.
eminent domain thus acquired, necessarily precludes
the idea of any other sovereignty existing within the
same limits. The subjects of the discovering nation must
necessarily be bound by the declared sense of their
own government, as to the extent of this sovereignty,
and the domain acquired with it. Even if it should be
admitted that the Indians were originally an independent
people, they have ceased to be so. A nation that has
passed under the dominion of another, is no longer a
sovereign state. fn-a The same treaties and negotiations,
before referred to, show their dependent condition. Or,
if it be admitted that they are now independent and
foreign states, the title of the plaintiffs would still be
invalid: as grantees from the Indians, they must take
according to their laws of property, and as Indian
subjects. The law of every dominion affects all persons
and property situate within it; fn-b and the Indians never
had any idea of individual property in lands. It cannot be
said that the lands conveyed were disjoined from their
dominion; because the grantees could not take the
sovereignty and eminent domain to themselves.
Such, then, being the nature of the Indian title to
lands, the extent of their right of alienation must depend
upon the laws of the dominion under which they live.
They are subject to the sovereignty of the United
States. The subjection proceeds from their residence
within our territory and jurisdiction. It is unnecessary to
show, that they are not citizens in the ordinary sense of
that term, since they are destitute of the most essential
rights which belong to that character. They are of that
class who are said by jurists not to be citizens, but
perpetual inhabitants with diminutive rights.fn-a' The
statutes of Virginia, and of all the other colonies, and of
the United States, treat them as an inferior race of
people, without the privileges of citizens, and under the
perpetual protection and pupilage of the government.
The act of Virginia of 1662, forbade purchases from the
Indians, and it does not appear that it was ever
repealed. The act of 1779 is rather to be regarded
fn-a Vattel, 1. 1. c. 1. s. 11.
fn-b Cowp. Rep. 204.
fn-a' Vattel, 1. 1. c. 19. s. 213.
as a declaratory act, founded upon what had always
been regarded as the settled law. These statutes seem
to define sufficiently the nature of the Indian title to
lands; a mere right of usufruct and habitation, without
power of alienation. By the law of nature, they had not
acquired a fixed property capable of being transferred.
The measure of property acquired by occupancy is
determined, according to the law of nature, by the
extent of men's wants, and their capacity of using it to
supply them. fn-b' It is a violation of the rights of others to
exclude them from the use of what we do not want, and
they have an occasion for. Upon this principle the North
American Indians could have acquired no proprietary
2
interest in the vast tracts of territory which they
wandered over; and their right to the lands on which
they hunted, could not be considered as superior to that
which is acquired to the sea by fishing in it. The use in
the one case, as well as the other, is not exclusive.fn-a
According to every theory of property, the Indians had
no individual rights to land; nor had they any
collectively, or in their national capacity; for the lands
occupied by each tribe were not used by them in such a
manner as to prevent their being appropriated by a
people of cultvators. All the proprietary rights of civilized
nations on this continent are founded on this principle.
The right derived from discovery and conquest, can rest
on no other basis; and all existing titles depend on the
fundamental title of the crown by discovery.The title of
the crown (as representing the nation) passed to the
colonists by charters, which were absolute grants of the
soil; and it was a first principle in colonial law, that all
titles must be derived from the crown. It is true that, in
some cases, purchases were made by the colonies
from the Indians; but this was merely a measure of
policy to prevent hostilities; and William Penn's
purchase, which was the most remarkable transaction
of this kind, was not deemed to add to the strength of
his title. fn-b In most of the colonies, the
fn-b' Grotius, 1. 2. c. 11. Barbeyr. Puffend. 1. 4. c. 4.
s. 2. 4. 2 Bl. Comm. 2. Puffend. 1. 4. c. 6. s. 3. Locke on
Government, b. 2. c. 5. s. 26. 34 -- 40.
Vol. VIII
fn-a Locke, c. 5. s. 36 -- 48. Grotius, 1. 2. c. 11. s. 2.
Montesquieu, tom. 2. p. 63. Chalmers' Polit. Annals, 5.
6 Cranch's Rep. 87.
fn-b Penn v. Lord Baltimore, 1 Ves. 444. Chalmers'
Polit. Annals, 644. Sullivan's Land Tit. c. 2. Smith's Hist.
N.Y. 145. 184.
doctrine was received, that all titles to land must be
derived exclusively from the crown, upon the principle
that the settlers carried with them, not only all the rights,
but all the duties of Englishmen; and particularly the
laws of property, so far as they are suitable to their new
condition.fn-a In New-England alone, some lands have
been held under Indian deeds. But this was an anomaly
arising from peculiar local and political causes. fn-b
As to the effect of the proclamation of 1763: if the
Indians are to be regarded as independent sovereign
states, then, by the treaty of peace, they became
subject to the prerogative legislation of the crown, as a
conquered people, in a territory acquired, jure belli, and
ceded at the peace. fn-c If, on the contrary, this country
be regarded as a royal colony, then the crown had a
direct power of legislation; or at least the power of
prescribing the limits within which grants of land and
settlements should be made within the colony. The
same practice always prevailed under the proprietary
governments, and has been followed by the
government of the United States.
Mr. Chief Justice MARSHALL delivered the opinion
of the Court. The plaintiffs in this cause claim the land,
in their declaration mentioned, under two grants,
purporting to be made, the first in 1773, and the last in
1775, by the chiefs of certain Indian tribes, constituting
the Illinois and the Piankeshaw nations; and the
question is, whether this title can be recognised in the
Courts of the United States?
The facts, as stated in the case agreed, show the
authority of the chiefs who executed this conveyance,
so far as it could be given by their own people; and
likewis show, that the particular tribes for whom these
chiefs acted were in rightful possession of the land they
sold. The inquiry, therefore, is, in a great measure,
confined to the power of Indians to give, and of private
individuals to receive, a title which can be sustained in
the Courts of this country.
As the right of society, to prescribe those rules by
which property may be acquired and preserved is not,
and cannot be drawn into question; as the
fn-a 1 Bl. Comm. 107. 2 P. Wms. 75. 1 Salk. 411.
616.
fn-b Sulliv. Land Tit. 45.
fn-c Cowp. 204. 7 Co. Rep. 17 b.2 Meriv. Rep. 143.
title to lands, especially, is and must be admitted to
depend entirely on the law of the nation in which they
lie; it will be necessary, in pursuing this inquiry, to
examine, not singly those principles of abstract justice,
which the Creator of all things has impressed on the
mind of his creature man, and which are admitted to
regulate, in a great degree, the rights of civilized
nations, whose perfect independence is acknowledged;
but those principles also which our own government
has adopted in the particular case, and given us as the
rule for our decision.
On the discovery of this immense continent, the
great nations of Europe were eager to appropriate to
themselves so much of it as they could respectively
acquire. Its vast extent offerend an ample field to the
ambition and enterprise of all; and the character and
religion of its inhabitants afforded an apology for
considering them as a people over whom the superior
genius of Europe might claim an ascendency. The
potentates of the old world found no difficulty in
convincing themselves that they made ample
3
compensation to the inhabitants of the new, by
bestowing on them civilization and Christianity, in
exchange for unlimited independence. But, as they
were all in pursuit of nearly the same object, it was
necessary, in order to avoid conflicting settlements, and
consequent war with each other, to establish a
principle, which all should acknowledge as the law by
which the right of acquisition, which they all asserted,
should be regulated as between themselves. This
principle was, that discovery gave title to the
government by whose subjects, or by whose authority,
it was made, against all other European governments,
which title might be consummated by possession.
The exclusion of all other Europeans, necessarily
gave to the nation making the discovery the sole right of
acquiring the soil from the natives, and establishing
settlements upon it. It was a right with which no
Europeans could interfere. It was a right which all
asserted for themselves, and to the assertion of which,
by others, all assented.
Those relations which were to exist between the
discoverer and the natives, were to be regulated by
themselves. The rights thus acquired being exclusive,
no other power could interpose between them.
In the establishment of these relations, the rights of
the original inhabitants were, in no instance, entirely
disregarded; but were necessarily, to a considerable
extent, impaired. They were admitted to be the rightful
occupants of the soil, with a legal as well as just claim
to retain possession of it, and to use it according to their
own discretion; but their rights to complete sovereignty,
as independent nations, were necessarily diminished,
and their power to dispose of the soil at their own will, to
whomsoever they pleased, was denied by the original
fundamental principle, that discovery gave exclusive
title to those who made it.
While the different nations of Europe respected the
right of the natives, as occupants, they asserted the
ultimate dominion to be in themselves; and claimed and
exercised, as a consequence of this ultimate dominion,
a power to grant the soil, while yet in possession of the
natives. These grants have been understood by all, to
convey a title to the grantees, subject only to the Indian
right of occupancy.
The history of America, 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,
all show that she placed it on the rights given by
discovery. Portugal sustained her claim to the Brazils by
the same title.
France, also, founded her title to the vast territories
she claimed in America on discovery. However
conciliatory her conduct to the natives may have been,
she still asserted her right of dominion over a great
extent of country not actually settled by Frenchmen,
and her exclusive right to acquire and dispose of the
soil which remained in the occupation of Indians. Her
monarch claimed all Canada and Acadie, as colonies of
France, at a time when the French population was very
inconsiderable, and the Indians occupied almost the
whole country. He also claimed Louisiana,
comprehending the immense territories watered by the
Mississippi, and the rivers which empty into it, by the
title of discovery. The letters patent granted to the Sieur
Demonts, in 1603, constitute him Lieutenant General,
and the representative of the King in Acadie, which is
described as stretching from the 40th to the 46th
degree of north latitude; with authority to extend the
power of the French over that country, and its
inhabitants, to give laws to the people, to treat with the
natives, and enforce the observance of treaties, and to
parcel out, and give title to lands, according to his own
judgment.
The States of Holland also made acquisitions in
America, and sustained their right on the common
principle adopted by all Europe. They allege, as we are
told by Smith, in his History of New-York, that Henry
Hudson, who sailed, as they say, under the orders of
their East India Company, discovered the country from
the Delaware to the Hudson, up which he sailed to the
43d degree of north latitude; and this country they
claimed under the title acquired by this voyage. Their
first object was commercial, as appears by a grant
made to a company of merchants in 1614; but in 1621,
the States General made, as we are told by Mr. Smith,
a grant of the country to the West India Company, by
the name of New Netherlands.
The claim of the Dutch was always contested by the
English; not because they questioned the title given by
discovery, but because they insisted on being
themselves the rightful claimants under that title. Their
pretensions were finally decided by the sword.
No one of the powers of Europe gave its full assent
to this principle, more unequivocally than England. The
documents upon this subject are ample and complete.
So early as the year 1496, her monarch granted a
commission to the Cabots, to discover countries then
unknown to Christian people, and to take possession of
them in the name of the king of England. Two years
4
afterwards, Cabot proceeded on this voyage, and
discovered the continent of North America, along which
he sailed as far south as Virginia. To this discovery the
English trace their title.
In this first effort made by the English government to
acquire territory on this continent, we perceive a
complete recognition of the principle which has been
mentioned. The right of discovery given by this
commission, is confined to countries "then unknown to
all Christian people;" and of these countries Cabot was
empowered to take possession in the name of the king
of England. Thus asserting a right to take possession,
notwithstanding the occupancy of the natives, who were
heathens, and, at the same time, admitting the prior title
of any Christian people who may have made a previous
discovery...
... Thus has our whole country been granted by the
crown while in the occupation of the Indians. These
grants purport to convey the soil as well as the right of
dominion to the grantees. In those governments which
were denominated royal, where the right to the soil was
not vested in individuals, but remained in the crown, or
was vested in the colonial government, the king claimed
and exercised the right of granting lands, and of
dismembering the government at his will... In the treaty
of 1763, France ceded and guarantied to Great Britain,
all Nova Scotia, or Acadie, and Canada, with their
dependencies; and it was agreed, that the boundaries
between the territories of the two nations, in America,
should be irrevocably fixed by a line drawn from the
source of the Mississippi, through the middle of that
river and the lakes Maurepas and Ponchartrain, to the
sea. This treaty expressly cedes, and has always been
understood to cede, the whole country, on the English
side of the dividing line, between the two nations,
although a great and valuable part of it was occupied by
the Indians. Great Britain, on her part, surrendered to
France all her pretensions to the country west of the
Mississippi.It has never been supposed that she
surrendered nothing, although she was not in actual
possession of a foot of land. She surrendered all right to
acquire the country; and any after attempt to purchase it
from the Indians, would have been considered and
treated as an invasion of the territories of France.
By the 20th article of the same treaty, Spain ceded
Florida, with its dependencies, and all the country she
claimed east or southeast of the Mississippi, to Great
Britain. Great part of this territory also was in
possession of the Indians.
By a secret treaty, which was executed about the
same time, France ceded Louisiana to Spain; and
Spain has since retroceded the same country to
France. At the time both of its cession and retrocession,
it was occupied, chiefly, by the Indians.
Thus, all the nations of Europe, who have acquired
territory on this continent, have asserted in themselves,
and have recognised in others, the exclusive right of the
discoverer to appropriate the lands occupied by the
Indians. Have the American States rejected or adopted
this principle?
By the treaty which concluded the war of our
revolution, Great Britain relinquished all claim, not only
to the government, but to the "propriety and territorial
rights of the United States," whose boundaries were
fixed in the second article. By this treaty, the powers of
government, and the right to soil, which had previously
been in Great Britain, passed definitively to these
States. We had before taken possession of them, by
declaring independence; but neither the declaration of
independence, nor the treaty confirming it, could give us
more than that which we before possessed, or to which
Great Britain was before entitled. It has never been
doubted, 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, 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.
Virginia, particularly, within whose chartered limits
the land in controversy lay, passed an act, in the year
1779, declaring her "exclusive right of pre-emption from
the Indians, of all the lands within the limits of her own
chartered territory, and that no person or persons
whatsoever, have, or ever had, a right to purchase any
lands within the same, from any Indian nation, except
only persons duly authorized to make such purchase;
formerly for the use and benefit of the colony, and lately
for the Commonwealth." The act then proceeds to annul
all deeds made by Indians to individuals, for the private
use of the purchasers.
Without ascribing to this act the power of annulling
vested rights, or admitting it to countervail the testimony
furnished by the marginal note opposite to the title of
the law, forbidding purchases from the Indians, in the
revisals of the Virginia statutes, stating that law to be
repealed, it may safely be considered as an
unequivocal affirmance, on the part of Virginia, of the
broad principle which had always been maintained, that
the exclusive right to purchase from the Indians resided
in the government.
In pursuance of the same idea, Virginia proceeded,
at the same session, to open her land office, for the
sale of that country which now constitutes Kentucky, a
5
country, every acre of which was then claimed and
possessed by Indians, who maintained their title with as
much persevering courage as was ever manifested by
any people.
The States, having within their chartered limits
different portions of territory covered by Indians, ceded
that territory, generally, to the United States, on
conditions expressed in their deeds of cession, which
demonstrate the opinion, that they ceded the soil as
well as jurisdiction, and that in doing so, they granted a
productive fund to the government of the Union. The
lands in controversy lay within the chartered limits of
Virginia, and were ceded with the whole country
northwest of the river Ohio. This grant contained
reservations and stipulations, which could only be made
by the owners of the soil; and concluded with a
stipulation, that "all the lands in the ceded territory, not
reserved, should be considered as a common fund, for
the use and benefit of such of the United States as
have become, or shall become, members of the
confederation," &c. "according to their usual respective
proportions in the general charge and expenditure, and
shall be faithfully and bona fide disposed of for that
purpose, and for no other use or purpose whatsoever."
The ceded territory was occupied by numerous and
warlike tribes of Indians; but the exclusive right of the
United States to extinguish their title, and to grant the
soil, has never, we believe, been doubted.
After these States became independent, a
controversy subsisted between them and Spain
respecting boundary. By the treaty of 1795, this
controversy was adjusted, and Spain ceded to the
United States the territory in question. This territory,
though claimed by both nations, was chiefly in the
actual occupation of Indians.
The magnificent purchase of Louisiana, was the
purchase from France of a country almost entirely
occupied by numerous tribes of Indians, who are in fact
independent. Yet, any attempt of others to intrude into
that country, would be considered as an aggression
which would justify war.
Our late acquisitions from Spain are of the same
character; and the negotiations which preceded those
acquisitions, recognise and elucidate the principle
which has been received as the foundation of all
European title in America.
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.
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
recognise the absolute title of the crown, subject only to
the Indian right of occupancy, and recognise the
absolute title of the crown to extinguish that right. This
is incompatible with an absolute and complete title in
the Indians.
We will not enter into the controversy, whether
agriculturists, merchants, and manufacturers, have a
right, on abstract principles, to expel hunters from the
territory they possess, or to contract their limits.
Conquest gives a title which the Courts of the
conqueror cannot deny, whatever the private and
speculative opinions of individuals may be, respecting
the original justice of the claim which has been
successfully asserted. The British government, which
was then our government, and whose rights have
passed to the United States, asserted a title to all the
lands occupied by Indians, within the chartered limits of
the British colonies. It asserted also a limited
sovereignty over them, and the exclusive right of
extinguishing the title which occupancy gave to them.
These claims have been maintained and established as
far west as the river Mississippi, by the sword. The title
to a vast portion of the lands we now hold, originates in
them. It is not for the Courts of this country to question
the validity of this title, or to sustain one which is
incompatible with it.
Although we do not mean to engage in the defence
of those principles which Europeans have applied to
Indian title, they may, we think, find some excuse, if not
justification, in the character and habits of the people
whose rights have been wrested from them.
The title by conquest is acquired and maintained by
force. The conqueror prescribes its limits. Humanity,
however, acting on public opinion, has established, as a
6
general rule, that the conquered shall not be wantonly
oppressed, and that their condition shall remain as
eligible as is compatible with the objects of the
conquest. Most usually, they are incorporated with the
victorious nation, and become subjects or citizens of the
government with which they are connected. The new
and old members of the society mingle with each other;
the distinction between them is gradually lost, and they
make one people. Where this incorporation is
practicable, humanity demands, and a wise policy
requires, that the rights of the conquered to property
should remain unimpaired; that the new subjects should
be governed as equitably as the old, and that
confidence in their security should gradually banish the
painful sense of being separated from their ancient
connexions, and united by force to strangers.
When the conquest is complete, and the conquered
inhabitants can be blended with the conquerors, or
safely governed as a distinct people, public opinion,
which not even the conqueror can disregard, imposes
these restraints upon him; and he cannot neglect them
without injury to his fame, and hazard to his power.
But the tribes of Indians inhabiting this country were
fierce savages, whose occupation was war, and whose
subsistence was drawn chiefly from the forest. To leave
them in possession of their country, was to leave the
country a wilderness; to govern them as a distinct
people, was impossible, because they were as brave
and as high spirited as they were fierce, and were ready
to repel by arms every attempt on their independence.
What was the inevitable consequence of this state
of things? The Europeans were under the necessity
either of abandoning the country, and relinquishing their
pompous claims to it, or of enforcing those claims by
the sword, and by the adoption of principles adapted to
the condition of a people with whom it was impossible
to mix, and who could not be governed as a distinct
society, or of remaining in their neighbourhood, and
exposing themselves and their families to the perpetual
hazard of being massacred.
Frequent and bloody wars, in which the whites were
not always the aggressors, unavoidably ensued.
European policy, numbers, and skill, prevailed. As the
white population advanced, that of the Indians
necessarily receded. The country in the immediate
neighbourhood of agriculturists became unfit for them.
The game fled into thicker and more unbroken forests,
and the Indians followed. The soil, to which the crown
originally claimed title, being no longer occupied by its
ancient inhabitants, was parcelled out according to the
will of the sovereign power, and taken possession of by
persons who claimed immediately from the crown, or
mediately, through its grantees or deputies.
That law which regulates, and ought to regulate in
general, the relations between the conqueror and
conquered, was incapable of application to a people
under such circumstances. The resort to some new and
different rule, better adapted to the actual state of
things, was unavoidable. Every rule which can be
suggested will be found to be attended with great
difficulty.
However extravagant the pretension of converting
the discovery of an inhabited country into conquest may
appear; if the principle has been asserted in the first
instance, and afterwards sustained; if a country has
been acquired and held under it; if the property of the
great mass of the community originates in it, it becomes
the law of the land, and cannot be questioned. So, too,
with respect to the concomitant principle, that the Indian
inhabitants are to be considered merely as occupants,
to be protected, indeed, while in peace, in the
possession of their lands, but to be deemed incapable
of transferring the absolute title to others. However this
restriction may be opposed to natural right, and to the
usages of civilized nations, yet, if it be indispensable to
that system under which the country has been settled,
and be adapted to the actual condition of the two
people, it may, perhaps, be supported by reason, and
certainly cannot be rejected by Courts of justice.
This question is not entirely new in this Court. The
case of Fletcher v. Peck, grew out of a sale made by
the State of Georgia of a large tract of country within the
limits of that State, the grant of which was afterwards
resumed. The action was brought by a sub-purchaser,
on the contract of sale, and one of the covenants in the
deed was, that the State of Georgia was, at the time of
sale, seised in fee of the premises. The real question
presented by the issue was, whether the seisin in fee
was in the State of Georgia, or in the United States.
After stating, that this controversy between the several
States and the United States, had been compromised,
the Court thought it necessary to notice the Indian title,
which, although entitled to the respect of all Courts until
it should be legitimately extinguished, was declared not
to be such as to be absolutely repugnant to a seisin in
fee on the part of the State.
This opinion conforms precisely to the principle
which has been supposed to be recognised by all
European governments, from the first settlement of
America. The absolute ultimate title has been
considered as acquired by discovery, subject only to the
Indian title of occupancy, which title the discoverers
possessed the exclusive right of acquiring. Such a right
is no more incompatible with a seisin in fee, than a
7
lease for years, and might as effectually bar an
ejectment.
Another view has been taken of this question, which
deserves to be considered. The title of the crown,
whatever it might be, could be acquired only by a
conveyance from the crown. If an individual might
extinguish the Indian title for his own benefit, or, in other
words, might purchase it, still he could acquire only that
title.Admitting their power to change their laws or
usages, so far as to allow an individual to separate a
portion of their lands from the common stock, and hold
it in severalty, still it is a part of their territory, and is
held under them, by a title dependent on their laws. The
grant derives its efficacy from their will; and, if they
choose to resume it, and make a different disposition of
the land, the Courts of the United States cannot
interpose for the protection of the title. The person who
purchases lands from the Indians, within their territory,
incorporates himself with them, so far as respects the
property purchased; holds their title under their
protection, and subject to their laws. If they annul the
grant, we know of no tribunal which can revise and set
aside the proceeding. We know of no principle which
can distinguish this case from a grant made to a native
Indian, authorizing him to hold a particular tract of land
in severalty.
As such a grant could not separate the Indian from
his nation, nor give a title which our Courts could
distinguish from the title of his tribe, as it might still be
conquered from, or ceded by his tribe, we can perceive
no legal principle which will authorize a Court to say,
that different consequences are attached to this
purchase, because it was made by a stranger. By the
treaties concluded between the United States and the
Indian nations, whose title the plaintiffs claim, the
country comprehending the lands in controversy has
been ceded to the United States, without any
reservation of their title. These nations had been at war
with the United States, and had an unquestionable right
to annul any grant they had made to American citizens.
Their cession of the country, without a reservation of
this land, affords a fair presumption, that they
considered it as of no validity.They ceded to the United
States this very property, after having used it in
common with other lands, as their own, from the date of
their deeds to the time of cession; and the attempt now
made, is to set up their title against that of the United
States.
The proclamation issued by the King of Great
Britain, in 1763, has been considered, and, we think,
with reason, as constituting an additional objection to
the title of the plaintiffs.
By that proclamation, the crown reserved under its
own dominion and protection, for the use of the Indians,
"all the land and territories lying to the westward of the
sources of the rivers which fall into the sea from the
west and northwest," and strictly forbade all British
subjects from making any purchases or settlements
whatever, or taking possession of the reserved lands...
... It has never been contended, that the Indian title
amounted to nothing. Their right of possession has
never been questioned. The claim of government
extends to the complete ultimate title, charged with this
right of possession, and to the exclusive power of
acquiring that right...
QUESTIONS AND COMMENTS
1. To what extent, if any, does Justice Marshall base his
opinion on positivist jurisprudence, naturl law,
international law, racist bigotry, religious bigotry,
pragmatism, and/or the work ethic?
2. A well educated layman asked, "What document or
principle accounts for the belief that the U.S.
government has the right to decide where to put the
Indians?" Is this case helpful in answering that question
to a well educated layman?
3. Precisely what, in Hohfeldian teminology, did
discovery and jure belli give to the European conqueror
as against other European states? As against the
Native Americans?
4. What restraints are there upon the conqueror in
extinguishing the rights of thenative people? Do there
seem to be any absolutes involved? Did the other
European powers have any concern in the process of
extinguishment?
EN BANC
G.R. No. 1413 March 30, 1904
ANDRES VALENTON, ET AL., plaintiffs-appellants,
vs.
MANUEL MURCIANO, defendant-appellee.
8
 Montagne and Dominguez for appellants.
Del Pan, Ortigas and Fisher for appellee.
WILLARD, J.:
I. The findings of fact made by the court below in its
decision are as follows:
First. That in the year 1860, the plaintiffs, and each one
of them, entered into the peaceful and quiet occupation
and possession of the larger part of the lands described
in the complaint of the plaintiffs, to wit [description]:
Second. That on the date on which the plaintiffs entered
into the occupation and possession of the said lands, as
above set forth, these lands and every part thereof were
public, untilled, and unoccupied, and belonged to the
then existing Government of the Philippine Islands. That
immediately after the occupation and possession of the
said lands by the plaintiffs, the plaintiffs began to
cultivate and improve them in a quiet and peaceful
manner.
Third. That from the said year 1860, the plaintiffs
continued to occupy and possess the said lands, quietly
and peacefully, until the year 1892, by themselves, by
their agents and tenants, claiming that they were the
exclusive owners of said lands.
Fourth. That on or about the 16th day of January, 1892,
Manuel Murciano, defendant in this proceeding, acting
on behalf of and as attorney in fact of Candido Capulong,
by occupation a cook, denounced the said lands to the
then existing Government of the Philippine Islands,
declaring that the said lands every part thereof were
public, untilled, and unoccupied lands belonging to the
then existing Government of the Philippine Islands, and
petitioned for the sale of the same to him.
Fifth. That before the execution of the sale heretofore
mentioned, various proceedings were had for the survey
and measurement of the lands in question at the instance
of the defendant, Murciano, the latter acting as agent and
attorney in fact of said Candido Capulong, a written
protest, however, having been entered against these
proceedings by the plaintiff Andres Valenton.
Sixth. That on the 14th day of July, 1892, Don Enrique
Castellvie Ibarrola, secretary of the treasury of the
Province of Tarlac, in his official capacity as such
secretary, executed a contract of purchase and sale, by
which said lands were sold and conveyed by him to the
defendant, Manuel Murciano, as attorney for the said
Candido Capulong.
Seventh. That on the 19th day of July, 1892, said
Candido Capulong executed a contract of purchase and
sale, by which he sold and conveyed the said lands to
the defendants, Manuel Murciano.
Eight. That from the said 14th day of July, 1892, Manuel
Murciano has at no time occupied or possessed all of the
land mentioned, but has possessed only certain in
distinct and indefinite portions of the same. That during
all this time the plaintiffs have opposed the occupation of
the defendant, and said plaintiffs during all the time in
question have been and are in the possession and
occupation of part of the said lands, tilling them and
improving them by themselves and by their agents and
tenants.
Ninth. That never, prior to the said 14th day of July,,
1892, has the defendant, Manuel Murciano, been in the
peaceful and quiet possession and occupation of the
said lands, or in the peaceful and quiet occupation of any
part thereof.
Upon these facts the Court of First Instance ordered
judgment for the defendant on the ground that the
plaintiffs had lost all right to the land by not pursuing their
objections to the sale mentioned in the sixth finding. The
plaintiffs excepted to the judgment and claim in this court
that upon the facts found by the court below judgment
should have been entered in their favor. Their contention
is that in 1890 they had been in the adverse possession
of the property for thirty years; that, applying the extra
ordinary period of prescription of thirty years, found as
well in the Partidas as in the Civil Code, they then
became the absolute owners of the land as against
everyone, including the State, and that when the State in
1892 deeded the property to the defendant, nothing
passed by the deed because the State had nothing to
convey.
The case presents, therefore, the important question
whether or not during the years from 1860 to 1890 a
private person, situated as the plaintiffs were, could have
obtained as against the State the ownership of the public
lands of the State by means of occupation. The court
finds that at the time of the entry by the plaintiff in 1860
the lands were vacant and were public lands belonging
to the then existing Government. The plaintiffs do not
claim to have ever obtained from the Government any
deed for the lands, nor any confirmation of their
possession.
Whether in the absence of any special legislation on the
subject a general statute of limitations in which the State
was not expressly excepted would run against the State
as to its public lands we do not find it necessary to
9
decide. Reasons based upon public policy could be
adduced why it should not, at least as to such public
lands as are involved in this case. (See Act No. 926, sec.
67.) We are, however, of the opinion that the case at bar
must be decided, not by the general statute of limitation
contained in the Partidas, but by those special laws
which from the earliest times have regulated the
disposition of the public lands in the colonies.
Did these special laws recognize any right of prescription
against the State as to these lands; and if so, to what
extend was it recognizes? Laws of very early date
provided for the assignment of public lands to the
subjects of the Crown. Law 1, title 12, book 4 of
the Recopilacion de Leyes de las Indias is an example of
them, and is as follows:
In order that our subjects may be encouraged to
undertake the discovery and settlement of the Indies,
and that they may live with the comfort and convenience
which we desire, it is our will that there shall be
distributed to all those who shall go out to people the new
territories, houses, lots, lands, peonias,
andcaballerias in the towns and places which may be
assigned to them by the governor of the new settlement,
who in apportioning the lands, will distinguish between
gentlemen and peasants, and those of lower degree and
merit, and who will add to the possessions and better the
condition of the grantees, according to the nature of the
services rendered by them, and with a view to the
promotion of agriculture and stock raising. To those who
shall have labored and established a home on said lands
and who shall have resided in the said settlement for a
period of four years we grant the right thereafter to sell
and in every other manner to exercise their free will over
said lands as over their own property. And we further
command that, in accordance with their rank and degree,
the governor, or whoever may be invested with our
authority, shall allot the Indians to them in any distribution
made, so that they may profit by their labor and fines in
accordance with the tributes required and the law
controlling such matters.
And in order that, in allotting said lands, there may be no
doubt as to the area of each grant, we declare that
apeonia shall consist of a tract fifty feet in breadth by one
hundred in length, with arable land capable of producing
one hundred bushels of wheat or barley, ten bushels of
maize, as much land for an orchard as two yokes of oxen
may plough in a day, and for the planting of other trees
of a hardy nature as much as may be plowed with eight
yokes in a day, and including pasture for twenty cows,
five mares, one hundred sheep, twenty goats, and ten
breeding pigs. A caballeria shall be a tract one hundred
feet in breadth and two hundred in length, and in other
respects shall equal five peonias — that is, it will include
arable land capable of producing five hundred bushels of
wheat or barley and fifty bushels of maize, as much land
for an orchard as may be ploughed with ten yokes of
oxen in a day, and for the planting of other hardy trees
as much as forty yokes may plough in a day, together
with pasturage for one hundred cows, twenty mares, five
hundred sheep, one hundred goats, and fifty breeding
pigs. And we order that the distribution be made in such
a manner that all may receive equal benefit therefrom,
and if this be impracticable, then that each shall be given
his due.
But it was necessary, however, that action should in all
cases be taken by the public officials before any interest
was acquired by the subject.
Law 8 of said title 12 is as follows:
We command that if a petition shall be presented asking
the grant of a lot or tract of land in a city or town in which
one of our courts may be located, the presentation shall
be made to the municipal council. If the latter shall
approve the petition, two deputy magistrates will be
appointed, who will acquaint the viceroy or municipal
president with the council's judgment in the matter. After
consideration thereof by the viceroy or president and the
deputy magistrates, all will sign the grants, in the
presence of the clerk of the council, in order that the
matter may be duly recorded in the council book. If the
petition shall be for the grant of waters and lands for
mercantile purpose, it shall be presented to the viceroy
or municipal president, who will transmit it to the council.
If the latters shall vote to make the grant, one of the
magistrates will carry its decision to the viceroy or
president, to the end that, upon consideration of the
matter by him, the proper action may be taken.
It happened, in the course of time, that tracts of the public
land were found in the possession of persons who either
had no title papers therefor issued by the State, or whose
title papers were defective, either because the proper
procedure had not been followed or because they had
been issued by persons who had no authority to do so.
Law 14, title 12 book 4 of said compilation (referred to in
the regulations of June 25, 1880, for the Philippines) was
the first of a long series of legislative acts intended to
compel those in possession of the public lands, without
written evidence of title, or with defective title papers, to
present evidence as to their possession or grants, and
obtain the confirmation of their claim to ownership. That
law is as follows:
We having acquitted full sovereignty over the Indies, and
all lands territories, and possession not heretofore ceded
10
away by our royal predecessors, or by, or in our name,
still pertaining to the royal crown and patrimony, it is our
will that all lands which are held without proper and true
deeds of grants be restored to us according as they
belong to us, in order that after reserving before all what
to us or to our viceroys, audiencias, and governors may
seem necessary for public squares, ways, pastures, and
commons in those places which are peopled, taking into
consideration not only their present condition, but also
the future and their probable increase, and after
distributing to the natives what may be necessary for
tillage and pasturage, confirming them in what they now
have and giving them more if necessary, all the rest of
said lands may remain free and unencumbered for us to
dispose of as we may wish.
We therefore order and command that all viceroys and
presidents of pretorial courts designated, at such time as
shall to them seem most expedient, a suitable period
within which all possessors of tracts, farms, plantations,
and estates shall exhibit to them, and to the court officers
appointed by them for this purpose, their title deeds
thereto. And those who are in possession by virtue of
proper deeds and receipts, or by virtue of just
prescriptive right shall be protected, and all the rest shall
be restored to us to be disposed of at our will.
While the State has always recognized the right of the
occupant to deed if he proves a possession for a
sufficient length of time, yet it has always insisted that he
must make that proof before the proper administrative
officers, and obtain from them his deed, and until he did
that the State remained the absolute owner.
In the preamble of this law there is, as is seen, a distinct
statement that all those lands belong to the Crown which
have not been granted by Philip, or in his name, or by the
kings who proceeded him. This statement excludes the
idea that there might be lands no so granted, that did not
being to the king. It excludes the idea that the king was
not still the owner of all ungranted lands, because some
private person had been in the adverse occupation of
them. By the mandatory part of the law all the occupants
of the public lands are required to produce before the
authorities named, and within a time to be fixed by them,
their title papers. And those who had good title or showed
prescription were to be protected in their holdings. It is
apparent that it was not the intention of the law that mere
possession for a length of time should make the
possessors the owners of the lands possessed by them
without any action on the part of the authorities. It is plain
that they were required to present their claims to the
authorities and obtain a confirmation thereof. What the
period of prescription mentioned in this law was does not
appear, but latter, in 1646, law 19 of the same title
declared "that no one shall be 'admitted to adjustment'
unless he has possessed the lands for ten years."
In law 15, title 12, book 4 of the same compilation, there
is a command that those lands as to which there has
been no adjustment with the Government be sold at
auction to the highest bidder. That law is as follows:
For the greater good of our subjects, we order and
command that our viceroys and governing presidents
shall do nothing with respect to lands the claims to which
have been adjusted by their predecessors, tending to
disturb the peaceful possession of the owners thereof.
As to those who shall have extended their possession
beyond the limits fixed in the original grants, they will be
admitted to a moderate adjustment with respect to the
excess, and new title deeds will be issued therefor. And
all those lands as to which no adjustment has been made
shall, without exception, be sold at public auction to the
highest bidder, the purchase price therefor to be payable
either in cash or in the form of quitrent, in accordance
with the laws and royal ordinances of the kingdoms of
Castile. We leave to the viceroys and president the mode
and from in which what is here ordered shall be carried
into effect in order that they may provide for it at the least
possible cost; and in order that all unnecessary expense
with respect to the collections for said lands may be
avoided, we command that the same be made by our
royal officers in person, without the employment of
special collectors, and to that end availing themselves of
the services of our royal courts, and, in places where
courts shall not have been established, of the town
mayors.
And whereas, title deeds to lands have been granted by
officers not authorized to issue them, and such titles
have been confirmed by us in council, we command that
those holding such a certificate of confirmation may
continue to possess the lands to which it refers, and will,
within the limits stated in the confirmation certificate, be
protected in their possession; and with respect to any
encroachment beyond such limits will be admitted to the
benefits of this law.
Another legislative act of the same character was the
royal cedula of October 15, 1754 (4 Legislacion
Ultramarina, Rodriguez San Pedro, 673). Articles 3, 4,
and 5 of this royal cedula as follows:
3. Upon each principal subdelegate's appointment,
which will be made in the manner prescribed in article 1
of this cedula, and upon his receipts of these instructions,
of which every principal subdelegate already designated
or who may hereafter be appointed shall be furnished a
copy, said subdelegate will in his turn issue a general
11
order to the courts in the provincial capitals and principal
towns of his district, directing the publication therein, in
the manner followed in connection with the promulgation
or general orders of viceroys, presidents, and
administrative courts in matters connected with my
service, of these instructions, to the end that any and all
persons who, since the year 1700, and up to the date of
the promulgation and publication of said order, shall have
occupied royal lands, whether or not the same shall be
cultivated of tenanted, may, either in person or through
their attorneys or representatives, appear and exhibit to
said subdelegates the titles and patents by virtue of
which said lands are occupied. Said subdelegates will
designate as the period within which such documents
must be presented a term sufficient in length and
proportionate to the distance the interested party may
have to travel for the purpose of making the presentation.
Said subdelegates will at the same time warn the parties
interested that in case of their failure to present their title
deeds within the term designated, without a just and valid
reason therefor, they will be deprived of an evicted from
their lands, and they will be granted to others.
4. If it shall appear from the titles or instruments
presented, or if it shall be shown in any other legal
manner that said persons are in possession of such royal
lands by virtue of a sale or adjustment consummated by
duly authorized subdelegates prior to the said year 1700,
although such action may not have been confirmed by
my royal person, or by a viceroy or president, they shall
in no wise be molested, but shall be left in the full and
quiet possession of the same; nor shall they be required
to pay any fee on account of these proceedings, in
accordance with law 15, title 12, book 4 of
the Recopilacion de los Indias, above cited. A note shall
be made upon said title deeds to the effect that his
obligation has been complied with, to the end that the
owners of such rival lands and their successors may
hereafter be free from denunciation, summons, or other
disturbance in their possession.
Where such possessors shall not be able to produce title
deeds it shall be sufficient if they shall show that ancient
possession, as a valid title by prescription; provided,
however, that if the lands shall not be in state of
cultivation or tillage, the term of three months prescribed
by law 11 of the title and book cited, or such other period
as may be deemed adequate, shall be designated as the
period within which the lands must be reduced to
cultivation, with the warning that in case of their failure
so to do the lands will be granted, with the same
obligation to cultivate them, to whomsoever may
denounce them.
5. Likewise neither shall possessors of lands sold or
adjusted by the various subdelegates from the year 1700
to the present time be molested, disturbed, or
denounced, now or at any other time, with respect to
such possession, if such sales or adjustments shall have
been confirmed by me, or by the viceroy or the president
of the court of the district in which the lands are located
while authorized to exercise this power. In cases where
the sales of adjustments shall not have been so
confirmed, the possessors will present to the courts of
their respective district and to the other officials hereby
empowered to receive the same, a petition asking for the
confirmation of said sales and adjustments. After the
proceedings outlined by the subdelegates in their order
with respect to the measurement and valuation of the
said lands, and with reference to the title issued therefor,
shall have been duly completed, said courts and officials
will make an examination of the same for the purpose of
ascertaining whether the sale or adjustment has been
made without fraud and collusion, and for an adequate
and equitable price, and a similar examination shall be
made by the prosecuting attorney of the district, to the
end that, in view of all the proceedings and the purchase
or adjustment price of the land, and the media
anata having been duly, etc., paid into the royal treasury,
as well as such additional sum as may be deemed
proper, there will be issued to the possessor, in my royal
name, a confirmation of his title, by virtue of which his
possession and ownership of lands and waters which it
represents will be fully legalized, to the end that at no
time will he or his heirs or assigns be disturbed or
molested therein.
The wording of this law is much stronger than that of law
14. As is seen by the terms of article 3, any person
whatever who occupied any public land was required to
present the instruments by virtue of which he was in
possession, within a time to be fixed by the authorities,
and he was warned that if he did not do so he would be
evicted from his land and it would be granted to others.
By terms of article 4 those possessors to whom grants
had been made prior to 1700, were entitled to have such
grants confirmed, and it was also provided that not being
able to prove any grants it should be sufficient to prove
"that ancient possession," as a sufficient title by
prescription, and they should be confirmed in their
holdings. "That ancient possession" would be at least
fifty-four years, for it would have to date from prior to
1700. Under article 5, where the possession dated from
1700, no confirmation could be granted on proof of
prescription alone.
The length of possession required to be proved before
the Government would issue a deed has varied in
different colonies and at different times. In the
12
Philippines, as has been seen, it was at one time ten
years, at another time fifty-four years at least. In Cuba,
by the royal cedula of April 24, 1833, to obtain a deed
one had to prove, as to uncultivated lands, a possession
of one hundred years, and as to cultivated lands a
possession of fifty years. In the same islands, by the
royal order of July 16, 1819, a possession of forty years
was sufficient.
In the Philippines at a later date royal of September 21,
1797 (4 Legislacion Ultramarina, Rodriguez San Pedro,
p. 688), directed the observation of the said royal cedula
of 1754, but apparently without being subject to the
period of prescription therein assigned.
The royal order of July 5, 1862 (Gaceta de Manila,
November 15, 1864), also ordered that until regulations
on the subject could be prepared the authorities of the
Islands should follow strictly the Laws of the Indies, the
Ordenanza of the Intendentes of 1786, and the said royal
cedula of 1754.
The royal order of November 14, 1876 (Guia del
Comprador de Terrenos, p. 51), directed the provincial
governors to urge those in unlawful possession of public
lands to seek an adjustment with the State in accordance
with the existing laws. The regulations as to the
adjustment (composicion) of the titles to public lands
remained in this condition until the regulations of June
25, 1880. This is the most important of the modern
legislative acts upon the matter of "adjustment" as
distinguished from that of the sale of the public lands.
The royal degree approving these regulations is dated
June 25, 1880, and is as follows:1
Upon the suggestion of the colonial minister, made in
conformity with the decree of the full meeting of the
council of state, I hereby approve the attached
regulations for the adjustment of royal lands wrongfully
occupied by private individuals in the Philippine Islands.
Articles 1, 4, 5, 8, and part of article 6 are as follows:
ART. 1. For the purpose of these regulations and in
conformity with law 14, title 12, book 4 of the
Recompilation of Laws of the Indies, the following will be
regarded as royal lands: All lands whose lawful
ownership is not vested in some private, persons, or,
what is the same thing, which have never passed to
private ownership by virtue of cession by competent
authorities, made either gratuitously or for a
consideration.
ART. 4. For all legal effects, those will be considered
proprietors of the royal lands herein treated who may
prove that they have possessed the lands without
interruption during the period of ten years, by virtue of a
good title and in good faith.
ART. 5. In the same manner, those who without such title
deeds may prove that they have possessed their said
lands without interruption for a period of twenty years if
in a state of cultivation, or for a period of thirty years if
uncultivated, shall be regarded as proprietors thereof. In
order that a tract of land may be considered cultivated, it
will be necessary to show that it has been broken within
the last three years.
ART. 6. Interested parties not included within the two
preceding articles may legalize their possession and
thereby acquire the full ownership of the said lands, by
means of adjustment proceedings, to be conducted in
the following manner: . . .
(5) Those who, entirely without title deeds, may be in
possession of lands belonging to the State and have
reduced said lands to a state of cultivation, may acquire
the ownership thereof by paying into the public treasury
the value of the lands at the time such possessors or
their representatives began their unauthorized
enjoyment of the same.
(6) In case said lands shall never have been ploughed,
but are still in a wild state, or covered with forest, the
ownership of the same may be acquired by paying their
value at the time of the filing of the claim, as stated in the
fourth paragraph."
ART. 8. If the interested parties shall not ask an
adjustment of the lands whose possession they are
unlawfully enjoying within the time of one year, or, the
adjustment having been granted by the authorities, they
shall fail to fulfill their obligation in connection with the
compromise, by paying the proper sum into the treasury,
the latter will, by virtue of the authority vested in it,
reassert the ownership of the State over the lands, and
will, after fixing the value thereof, proceed to sell at public
auction that part of the same which either because it may
have been reduced to cultivation or is not located within
the forest zone is not deemed advisable to preserve as
the State forest reservation.
The other articles of the regulations state the manner in
which applications should be made for adjustment, and
the proceedings thereon.
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Do these regulations declare that those who are included
in article 4 and 5 are the absolute owners of the land
occupied by them without any action on their part, or that
of the State, or do they declare that such persons must
seek an adjustment and obtain a deed from the State,
and if they do not do so within the time named in article
8 they lose all interest in the lands?
It must be admitted from the wording of the law that the
question is not free from doubt. Upon a consideration,
however, of the whole matter, that doubt must, we think,
be resolved in favor of the State. The following are some
of the reasons which lead us to that conclusion:
(1) It will be noticed that article 4 does not say that those
persons shall be considered as owners who have
occupied the lands for ten years, which would have been
the language naturally used if an absolute grant had
been intended. It says, instead, that those shall be
considered owners who may prove that they have been
in possession ten years. Was this proof to be made at
any time in the future when the question might arise, or
was it to be made in the proceedings which these very
regulations provided for that purpose? We think that the
latter is the proper construction.
(2) Article 1 declares in plain terms that all those lands
as to which the State has never executed any deeds are
the property of the State — that is, that on June 25, 1880,
no public lands belonged to individuals unless they could
exhibit a State deed therefor. This is entirely inconsistent
with the idea that the same law in its article 4 declares
that the lands in question in this case became the
property of the plaintiffs in 1870, and were not in 1880
the property of the State, though the State had never
given any deed for them.
(3) The royal decree, by its terms, relates to
lands wrongfully withheld by private persons. The
word detentadosnecessarily implies this. This is
inconsistent with the idea that by article 4 of the plaintiffs,
in 1870, became the absolute owners of the lands in
question, and were not therefore, in 1880, withholding
what did not belong to them.
(4) In the preface to this decree and regulations, the
following language is used:
SIR: The uncertain, and it may be said the precarious,
state of real property in various parts of the Philippine
Islands, as yet sparsely populated; the necessity for
encouraging the cultivation of these lands; the
advantage of increasing the wealth and products of the
Archipelago; the immense and immediate profit which
must result to all classes of interests, public as well as
private, from the substitution of full ownership, with all the
privileges which by law accompany this real right, for the
mere possession of the lands, have long counseled the
adoption of the provisions contained in the following
regulations, which, after consulation with the Philippine
council, and in conformity with an order passed at a full
meeting of the council of state, the subscribing minister
has the honor to submit for the royal approval. These
regulations refer not only to tenants of royal lands in good
faith and by virtue of a valid title, but also to those who,
lacking these, may, either by themselves reducing such
lands to cultivation or by the application of intelligence
and initiative, causing their cultivation by others who lack
these qualities, be augmenting the wealth of the
Archipelago.2
This preface is the most authoritative commentary on the
law, and shows without doubt that those who held with
color of title and good faith were, notwithstanding,
holding wrongfully, and that true ownership should be
substituted for their possession.
(5) This doubt suggested by the wording of the law was
the subject of inquiries directed to the officers in Manila
charged with its execution. These inquiries were
answered in the circular of August 10, 1881, published in
theGaceta de Manila August 11, 1881, as follows:
Should possessors of royal lands under color of title and
in good faith seek adjustment?
It is evident that they must do so, for it is to them that
article 4 of the regulations refers, as also the following
article covers other cases of possession under different
circumstances. It should be well understood by you, and
you should in turn have it understood by other, that the
adjustment of lands whose ownership has not passed to
private individuals by virtue of cession by competent
authorities, is optional only for those within the limits of
the common district (legua comunal) as provided by
article 7. In all other cases where the interested parties
shall fail to present themselves for the adjustment of the
lands occupied by them shall suffer the penalties set
forth in article 8 of said regulations.
In determining the meaning of a law where a doubt exists
the construction placed upon it by the officers whose duty
it is to administer it is entitled to weight.
(6) There is, moreover, legislative construction of these
regulations upon this point found in subsequent laws.
The royal decree of December 26, 1884, (Berriz Anuario,
1888, p. 117), provides in articles 1 that —
14
All those public lands wrongfully withheld by private
person in the Philippines which, in accordance with the
regulations of June 25, 1880, are subject to adjustment
with the treasury, shall be divided into three groups, of
which the first shall include those which, because they
are included in articles 4 and 5, and the first paragraph
of article 7, are entitled to free adjustment.
There were exceptions to this rule which are not here
important. Article 10 provides that if the adjustment is
free for those mentioned in articles 4 and 5, who are
included in the second group, the deed shall be issued
by the governor of the province. Article 11 says that if the
adjustment is not free, because the applicant has not
proved his right by prescription, then no deed can be
issued until the proper payment has been made. The
whole decree shows clearly that the legislator intended
that those mentioned in article 4 and 5 should apply for
a confirmation of their titles by prescription, as well as
those mentioned in article 6. In fact, for the adjustment of
those of the first group, which necessarily included only
those found within articles 4 and 5, a board was
organized (art. 15) in each pueblo whose sole duty it was
to dispatch applications made said two articles.
(7) The royal decree of August 31, 1888 (Berriz Anuario,
1888, p. 120), is another legislative construction of this
regulation. That decree repealed the decree of 1884, and
divided all lands subjects to adjustment under the
regulations of June 25, 1880, into two groups. In the first
group were all those lands which bordered at any points
on other State lands, and those which, though not
bordering on State lands, measured more than 30
hectares. In the second group were those which were
bounded entirely by lands of private persons and did not
exceed 30 hectares. For the second group a provincial
board was organized, and article 10 provides a hearing
before this board, and declares —
If no protest or claim shall be filed, and the adjustment
must be free because the occupant has proved title by
prescription, as provided in articles 4 and 5 of the
regulations promulgated June 25, 1880, the proceedings
shall be duty approved, and the head officer of the
province will, in his capacity of deputy director general of
the civil administration, issue the corresponding title
deed.
The policy pursued by the Spanish Government from the
earliest times, requiring settlers on the public lands to
obtain deeds therefor from the State, has been continued
by the American Government in Act No. 926, which takes
effect when approved by Congress. Section 54, sixth
paragraph of that act, declares that the persons named
in said paragraph 6 "shall be conclusively presumed to
have performed all the conditions essential to a
Government grant and to have received the same." Yet
such persons are required by section 56 to present a
petition to the Court of Land Registration for a
confirmation of these titles.
We have considered the regulations relating to
adjustment — that is, those laws under which persons in
possession might perfect their titles. But there were other
laws relating to the sale of public lands which contained
provisions fatal to the plaintiff's claims. The royal decree
of January 26, 1889 (Gaceta de Manila, March 20, 1889),
approved the regulations for the sale of public lands in
the Philippines, and it was in accordance with such
regulations that the appellee acquired his title. Article 4
of those regulations required the publication in
the Gaceta de Manila of the application to purchase, with
a description of the lands, and gave sixty days within
which anyone could object to the sale. A similar notice in
the dialect of the locality was required to be posted on
the municipal building of the town in which the land was
situated, and to be made public by the crier. Articles 5
and 6 declared to whom such objections shall be made
and the course which they should take. Article 8 is as
follows:
ART. 8. In no case will the judicial authorities take
cognizance of the suit against the decrees of the civil
administration concerning the sale of royal lands unless
the plaintiff shall attach to the complaint documents
which show that he has exhausted the administrative
remedy. After the proceeding in the executive
department shall have been terminated and the matter
finally passed upon, anyone considering his interests
prejudiced thereby may commence a suit in the court
against the State; but in no case shall an action be
brought against the proprietor of the land.
Similar provisions are found in the regulations of 1883,
approved the second time by royal order of February 16
(Gaceta de Manila, June 28, 1883). Articles 18 and 23 of
said regulations are as follows:
ART. 18. Possessors of such lands as may fall within the
class of alienable royal lands shall be obliged to apply for
the ownership of the same, or for the adjustment thereof
within the term of sixty days from the time of the
publication in the bulletin of Sales of the notice of sale
thereof.
ART. 23. The judicial authorities shall take cognizance of
no complaint against the decrees of the treasury
department concerning the sale of lands pertaining to the
state unless the complainant shall attached to the
15
complaint documents which proved that he has
exhausted the administrative remedy.
This prohibition appears also in the royal order of
October 26, 1881 (Gaceta de Manila, December 18,
1881) which relates evidently both to sales of public
lands and also to the adjustments with the occupants.
Article 5 of this royal order is as follows:
During the pendency of proceedings in the executive
department with respect to grants of land, interested
parties may present through executive channels such
protest as they may deemed advisable for the protection
of their right and interests. The proceeding having once
been completed, and the grant made, those who
consider their interests prejudiced thereby may proceed
in court against the State, but under no circumstances
against the grantees of the land.
The American legislation creating the Court of Land
Registration is but an application of this same principle.
In both systems the title is guaranteed to the petitioner,
after examination by a tribunal. In Spanish system this
tribunal was called an administrative one, in the
American a judicial one.
The court finds that the plaintiffs made a written protest
against the sale to the defendants while the proceedings
for the measurements and survey of the land were being
carried on, but that they did not follow up their protest.
This, as held by the court below, is a bar their recovery
in this action, under the articles above cited.
The plaintiff state in their brief that a great fraud was
committed on them and the State by the defendant in
applying for the purchase of this lands as vacant and
belonging to the public, when they were in the actual
adverse possession of the plaintiffs.
We have seen nothing in the regulations relating to
the sale of the public lands which limited their force to
vacant lands. On the contrary there are provisions which
indicate the contrary. In the application for the purchase
the petitioner is article 3 of the regulations of 1889
required to state whether any portion of the land sought
has been broken for cultivation, and to whom such
improvements belong. Article 9 provides that if one in
possession applies to purchase the land, he renounces
his right to a composicion under the laws relating to that
subject. By article 13 the report of the officials making the
survey must contain a statement as to whether any part
of the land is cultivated or not and if the applicant claims
to be the owner of such cultivated part.
In the regulations of January 19, 1883 (Gaceta de
Manila, June 28, 1883) is the following article:
ART. 18. Possessors of such lands as may fall within the
class of royal alienable lands shall be obliged to apply for
the ownership of the same, or for the adjustment thereof,
within the term of sixty days from the time of the
publication in the Bulletin of Sales of the notice of sale
thereof.
In view of all these provisions it seems impossible to
believe that the legislators even intended to leave the
validity of any sale made by the State to be determined
at any time in the future by the ordinary courts on parol
testimony. Such would be the result if the contention of
the plaintiffs is to be sustained. According to their claim,
this sale and every other sale made by the State can be
set aside if at any time in the future it can be proved that
certain persons had been in possession of the land for
the term then required for prescription.
If this claim is allowed it would result that even though
written title from the State would be safe from such attack
by parol evidence, by means of such evidence damages
could have been recovered against the State for lands
sold by the State to which third persons might thereafter
prove ownership but prescription. The unreliability of
parol testimony on the subject of possession is well
known. In this case in the report which the law required
to be made before a sale could be had it is stated by
an Ayudante de Montes that the tract had an area of 429
hectares, 77 ares, and 96 centares uncultivated, and 50
hectares, 19 ares, and 73 centares broken for cultivation.
The official report also says (1890) that the breaking is
recent. Notwithstanding this official report, the plaintiffs
introduced evidence from which the court found that the
greater part of the tract had been occupied and cultivated
by the plaintiffs since 1860.
It is hardly conceivable that the State intended to put in
force legislation under which its property rights could be
so prejudiced.
We hold that from 1860 to 1892 there was no law in force
in these Islands by which the plaintiffs could obtain the
ownership of these lands by prescription, without any
action by the State, and that the judgment below
declaring the defendant the owner of the lands must be
affirmed.
II. What has been said heretofore makes it unnecessary
to consider the motion for a new trial, made by the
defendant on the ground that the findings of fact are not
supported by the evidence.
16
III. The exception of the defendant to the order vacating
the appointment of the receiver can not be sustained.
The defendant at no time made any showing sufficient to
authorize the appointment of a receiver.

The case does not fall under No. 4 of section 174 of the
Code of Civil Procedure. Neither party in his pleadings
asked any relief as to the crops. They were not,
therefore, "the property which is the subject of litigation."

Neither does the case fall under No. 2 of section 174, for
the same reason.

Moreover, under No. 2 it must be shown that the property

is in danger of being lost. There was no showing of that
kind. The pleadings say nothing upon the subject. In the
motion for the appointment of the receiver it said that the
plaintiffs are insolvent. There is no evidence, by affidavit
or otherwise, to support this statement. A bare, unsworn
statement in a motion that the adverse party is insolvent
is not sufficient to warrant a court in appointing a receiver
for property in his possession.

The judgment of the court below is affirmed. Neither

party can recover costs in this court.

Arellano, C. J., Torres, Cooper, McDonough and

Johnson, JJ., concur.

17