This is an extract of our Acquisition document, which we sell as part of our Property Outlines collection written by the top tier of Harvard Law School students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Property Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
The right of discovery. The first sovereign to find unknown territory, land a craft, and perfect title has the exclusive right to appropriate it or convey this right to other sovereigns or individuals. M'Intosh. The right of conquest. A sovereign who takes enemy territory through force may annex title to land that its courts cannot deny, regardless of the original justice of the claim. M'Intosh. i. Typically, the rights of conquered are preserved, but this comes at the discretion of the sovereign. M'Intosh.
FRANCISCUS DE VICTORIA, DE INDIS ET DE JURE BELLI RELECTIONES (1557) (SUPP. I, 115) I. Right of discovery not applicable to America. The original justice of the European claim to the Americas was suspect; if property belongs to the first occupant "by the law of nations and the natural law," then "the barbarians were true owners, both from the public and from the private standpoint." Territory inhabited by Indians was regarded as terra nullius (and thus discovered) but converted into conquered territory because Indians could not be "assimilated."
Johnson v. M'Intosh (U.S. 1823) (3) (Marshall, C.J.) P tried to eject D from land. P's title came from local tribe; D's from Congress. Since Great Britain discovered/conquered Ohio River Valley and title passed to Virginia then United States, U.S. has exclusive right to transfer title. All Indians have is privilege of occupancy. D.
DISCOVERY & CONQUEST
Buy the full version of these notes or essay plans and more in our Property Outlines.