Johnson v. M'Intosh

Citation(s): 98 English Reports 1045; 1 Cowper's King's Bench Reports 204

Campbell v. Hall, also known as the Grenada case, concerned the validity of taxes levied on sugar exports from the island of Grenada. After the island was captured from the French and formally ceded to Great Britain in 1763, the British king issued a proclamation imposing a duty on all sugar exports. The Court of King’s Bench ruled that the monarch’s power to rule a conquered country by proclamation or decree only existed until the monarch granted that country a representative assembly. Since the sugar tax was decreed after the King had called for the formation of an assembly in Grenada, the proclamation was declared void.

Johnson v. M’Intosh discussed Campbell v. Hall because King George III’s 1763 proclamation also forbade the purchase of Indian lands west of the Appalachian mountains. Johnson’s attorneys argued that the invalidity of the proclamation, as found in Campbell, was one reason that lands could be purchased from the Piankeshaws directly. Justice Marshall, however, wrote that the king could not impose taxation by proclamation after an assembly was established, but that, “the powers of granting, or refusing to grant, vacant lands, and of restraining encroachments on the Indians, have always been asserted and admitted.” Johnson, at 597. The Court accepted that the power to do so was transferred by the British crown to the American government after the country’s independence.  

Citation(s): John Locke, Two Treatises of Government in The Works of John Locke, vol. 5 (Dublin, 1823), bk. 2, ch. 5, sec. 26-48.

John Locke (1632-1704) was an eminent British philosopher whose political theories have been profoundly influential in the United States. His Two Treatises of Government, a work of political philosophy written partly in response to upheaval in England leading up to the Glorious Revolution, articulated concepts of natural rights and limited government. In his Second Treatise, cited in Johnson, Locke asserted that a right of ownership requires exerting labor upon the land or a naturally occurring resource, also known as the labor theory of property. As Locke wrote, “[a]s much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property.” Second Treatise, ch. 5, sec. 31.

In Johnson v. M’Intosh, M’Intosh used Locke’s labor theory to argue that American Indians did not have a proprietary interest in the land that they could transfer. Since North America’s indigenous peoples did not own land privately or cultivate it in ways that European colonists recognized or admitted were familiar, they were not considered to exercise legitimate ownership, only a right of occupancy. Further, since they “have never been admitted into the general society of nations” (Johnson, at 545), they did not have sovereign status. The Court found that their occupancy was a kind of land interest that could be transferred, but was not as strong as a sovereign right. Marshall’s opinion ultimately vested the United States government with an exclusive power to purchase lands from indigenous peoples, and thus to extinguish their right of occupancy. 

Citation(s): Samuel Pufendorf, Of the Law of Nature and Nations (Oxford, 1753), bk. 4, ch. 5, sec. 1

Samuel von Pufendorf’s 1672 treatise De Jure Naturae et Gentium (On the Law of Nature and Nations) was considered an authoritative source on the law of nations, those rules that were thought to have natural, customary, and moral force in relations among different peoples or nations. The defendant in Johnson cited Pufendorf and other authorities for the opinion that indigenous peoples acquired no fixed property interest, amounting to ownership, in the vast lands that they “wandered over” and inhabited. Pufendorf wrote that requirements for a full property right were the continued use of land and the ability to exclude others from using it. The plaintiff agreed that the Piankeshaws’ right was probably only a right of occupancy, and was held in common among them, but they nevertheless argued that the Piankeshaws could transfer to individuals their right to the soil.

Citation(s): Hugo Grotius, On the Law of War and Peace (London, 1682), bk. 2, ch. 2, sec. 4

Hugo Grotius (1583-1645) was a renowned Dutch jurist during Holland’s “Golden Age” who made significant contributions to international law, as well as political and moral theory. Although not binding as a form of precedent, Grotius’s opinions were sometimes cited as persuasive authorities in English and American cases on property, particularly where questions of original possession arose. Johnson’s lawyers cited a passage in Grotius’s renowned 1625 treatise, De Jure Belli ac Pacis (On the Law of War and Peace), to support the assertion that indigenous societies held in common the lands on which they lived, and that this collective title by occupancy “is to be respected, as much as that of an individual, obtained by the same right, in a civilized state.” Johnson, at 563. The Marshall Court recognized the right of occupancy, but held that only the federal government could extinguish it.