Robert Treat Paine Papers, Volume 1
Upon reading the first Chapt. in Heineccius,1 the following Queries (whether connected with that Subject, or not) occurr'd. Viz.
I. Whether the Aboriginals of this Country were not by Virtue of Prior Possession, the Lawful Proprietors of it, when the Europeans first arriv'd among them?
II. Whether the Posterity of those Europeans can be suppos'd to have a good Title to any more of the Country, than they have either acquired by Compact of the Natives, or won from them in a just war?
III. Whether the Natives have not a legal Right of introducing either English or French to the Possession of such Lands, as the other have not obtain'd of them by Compact, or won from them in a just War?
If therefore
IV. The English have neither acquir'd a Title to the Ohio by Compact, nor by Conquest in a just War: And the Natives are disposed to put the French in Possession of it---
In such a Case
Are the French obliged, by the Treaty of Utrecht, to refuse such a Possession? Suppose they are.
Yet the Natives are not obliged by the Treaty of Utrecht, but are vested with a Right of conveying their Lands to whom they please, and securing the Possession to them?
Is it not therefore inconsistent with the Law of Nature & of Nations for the English to interpose by the Sword in that Affair?
Your Solutions will be acceptable to your Friend and Servant,
Johann Gottlieb Heineccius (1681–1740, German jurist whose writings ''are sound and practical, and are more commonly referred to in England and the United States than any of the Continental writers" (Marvin, Legal Bibliography, 380). The work discussed here is probably his Elemento Juris Naturæ et Gentium (Hale, 1742), translated into English in 1763 as A methodical System of Universal Law; or, the Law of Nature and Nations, deduced from certain Principles, and applied to proper cases.
Timothy Harrington (1716–1795), minister of the First Congregational Church of Lancaster (Sibley's Harvard Graduates, 10:188–195).
I recd. yr. favr., (for such I esteem all assistance to an unprejudiced Enquiry after Truth). As to yr. Queerys, if you have the copy, or remember them twill save me the trouble to transcribe.
1. Whether the Aboriginals of America are Proprietors by prior Possession? Prior possession by the Law of Nations is esteem'd a just Title to Propriety, of so much as is possess'd, & nothing appears but the Indians had it.
2. Whether the Posterity of the Europeans have a good Title &c.? Reprisals or agreemt. only give Title.
3. If the Natives may admit the French &c. yes surely, to their unimcumber'd Property.
4. If the English have no Title to Ohio, & the Native Propietors would intoduce the French who are disabled from rec eiving by the Treaty of Utretcht, how does this affect the Natives? No way immediately. They have a right of Conveyance, but the French have not a right of Acceptance; and can be no more benefited by the Natives Liberty, than the Natives are obliged by their Treaty of Utrecht. Ergo it does not as yet appear inconsistent wth. the Law of Nature & Nations for the English to hinder the French Settling Ohio even tho' the Natives have a Right to enfeoff them, unless you'll say it be inconsistent likewise to keep Treatys.
Please to correct Errors, & consider the following Queeres as further answers to yrs.
1. If there had been but one Man found in America, would he have been sole Proprietor? And whether his denying admission to the English (Europeans) would have been a Sufficient Barr?
2. How much Land does a Victory over the Indians give the Conqueror?
2533. Has not the Territorys of Ohio been purchased by the English, or at least the Refusal of them, or the Property Some Ways encumbred?
4. Allowing the Ohio no property of the English, & the Indians a Natural Right of Induction, yet Quere if the Encroachmt. of the French upon other Frontiers be not Sufficient breach of Peace to empower us hindring their fortifying a Bordering Land we have no Property in? If the Indians Ally wth. our Enemies, is not that Sufficient to declare them Enemies, & justify hostile proceedings in their Land? If they pretend to be Neutral, yet does not a fortress built on our Boundary Annoy us hience the destruction of it.