Pratt-Yorke opinion
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Charles Pratt, 1st Earl Camden
Charles Pratt, 1st Earl Camden was an English lawyer, judge and Whig politician who was first to hold the title of Earl of Camden...
, the Attorney General for England and Wales
Attorney General for England and Wales
Her Majesty's Attorney General for England and Wales, usually known simply as the Attorney General, is one of the Law Officers of the Crown. Along with the subordinate Solicitor General for England and Wales, the Attorney General serves as the chief legal adviser of the Crown and its government in...
, and Charles Yorke
Charles Yorke
Charles Yorke was Lord Chancellor of Great Britain.-Life:The second son of Philip Yorke, 1st Earl of Hardwicke, he was born in London, and was educated at Corpus Christi College, Cambridge. His literary abilities were shown at an early age by his collaboration with his brother Philip in the...
, the Solicitor General for England and Wales
Solicitor General for England and Wales
Her Majesty's Solicitor General for England and Wales, often known as the Solicitor General, is one of the Law Officers of the Crown, and the deputy of the Attorney General, whose duty is to advise the Crown and Cabinet on the law...
(and former counsel to the East India Company), regarding the legality of land purchases by the British East India Company
British East India Company
The East India Company was an early English joint-stock company that was formed initially for pursuing trade with the East Indies, but that ended up trading mainly with the Indian subcontinent and China...
from the rulers of the Princely states in British India.
In large part due to this opinion, India
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
remains the only common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdiction which has rejected the doctrine of aboriginal title
Aboriginal title
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism...
.
Origin
British East India Company
The East India Company was an early English joint-stock company that was formed initially for pursuing trade with the East Indies, but that ended up trading mainly with the Indian subcontinent and China...
. The Company had previously been involved in land disputes with regular army officers—both over land acquired by purchase and land acquired by conquest.
The opinion was reported on 24 December 1757.
Text
The opinion began with the least controversial portion: that territory seized by plunder was validly held by the Company. If, in the course of the Company's trade, the Company acquired land by a defensive action, without the assistance of the regular army, it alone held title to those lands.The opinion went on to distinguish lands acquired by conquest from those acquired by treaty or negotiation. In the former case, the Crown would acquire both sovereignty and title; in the latter case, the Crown would acquire sovereignty, but the Company would acquire title. Pratt and Yorke explained that, in India, a land grant
Land grant
A land grant is a gift of real estate – land or its privileges – made by a government or other authority as a reward for services to an individual, especially in return for military service...
issued by The Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
was not a preqrequisite for land titles to be valid.
The opinion condoned direct purchases "from the Mogul or any of the Indian Princes, or governments."
Chalmers' version
The following text of the opinion is given by George ChalmersGeorge Chalmers
George Chalmers was a Scottish antiquarian and political writer.-Biography:Chalmers was born at Fochabers, Moray, in 1742. His father, James Chalmers, was a grandson of George Chalmers of Pittensear, a small estate in the parish of Lhanbryde, now St Andrews-Lhanbryde, in Moray, owned by the family...
in his 1814 text, Opinions of Eminent Lawyers:
III. How far the king's subjects, who emigrate, carry with them the law of England : First, The common law ; Second, The statute law.
First. As to the common law.
(1.) Mr. West's opinion on this subject in 1720.
The common law of England, is the common law of the plantations, and all statutes in affirmance of the common law, passed in England, antecedent to the settlement of a colony, are in force in that colony, unless there is some private act to the contrary, though no statutes, made since those settlements, are in force, unless the colonies are particularly mentioned. Let an Englishman go where he will, he carries as much of law and liberty with him, as the nature of things will bear.
(2.) The opinion of the attorney, and solicitor-general, Pratt, and Yorke, that the king's subjects carry with them the common law, wherever they may form settlements.
In respect to such places as have been, or shall be, acquired by treaty, or grant, from any of the Indian princes, or governments, your majesty's letters patent are not necessary ; the property of the soil vesting in the grantees, by the Indian grants, subject only to your majesty's right of sovereignty over the settlements, as English settlements, and over the inhabitants, as English subjects, who carry with them your majesty's laws, wherever they form colonies, and receive your majesty's protection, by virtue of your royal charters.
Effect in the North America
Land speculators in North America, opposed to the Royal Proclamation of 1763Royal Proclamation of 1763
The Royal Proclamation of 1763 was issued October 7, 1763, by King George III following Great Britain's acquisition of French territory in North America after the end of the French and Indian War/Seven Years' War...
, which prohibited private purchases of land from Native Americans, circulated modified versions of the Pratt-Yorke opinion. Mis-transcribed versions of the opinion appeared in North America circa 1757 or 1773. These versions omitted all reference to the East India Company or the Mogul, instead referring simply to "Indian Princes or Governments."
One reproduction of this version of the opinion can be found in the flyleaf
Flyleaf
Flyleaf is an American alternative metal band, formed in the Belton and Temple, Texas regions in 2000. The band has charted on mainstream rock, Christian pop and Christian metal genres. They performed around the United States in 2003 until releasing their eponymous debut album, Flyleaf, in 2005....
of George Washington
George Washington
George Washington was the dominant military and political leader of the new United States of America from 1775 to 1799. He led the American victory over Great Britain in the American Revolutionary War as commander-in-chief of the Continental Army from 1775 to 1783, and presided over the writing of...
's 1783 diary. Land speculator William Murray
William Murray
-Nobility:*William Murray, 1st Earl of Mansfield , British jurist*William Murray, 4th Earl of Mansfield and Mansfield , British nobleman*William Murray, 8th Earl of Mansfield and Mansfield -Nobility:*William Murray, 1st Earl of Mansfield (1705–1793), British jurist*William Murray, 4th Earl of...
unsuccessfully attempted to persuade a British military commander to allow him to begin negotiations with Indians based on another copy.
Chief Justice John Marshall
John Marshall
John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...
(citing to such a mis-transcribed version) considered the relevance of the Pratt-Yorke opinion to the status of aboriginal title in the United States
Aboriginal title in the United States
The United States was the first jurisdiction to acknowledge the common law doctrine of aboriginal title...
in Johnson v. M'Intosh
Johnson v. M'Intosh
Johnson v. M'Intosh, 21 U.S. 543 , is a landmark decision of the U.S. Supreme Court that held that private citizens could not purchase lands from Native Americans...
(1823):
The opinion of the Attorney and Solicitor General, Pratt and Yorke, have been adduced to prove, that, in the opinion of those great law officers, the Indian grant could convey a title to the soil without a patent emanating from the crown. The opinion of those persons would certainly be of great authority on such a question, and we were not a little surprised, when it was read, at the doctrine it seemed to advance. An opinion so contrary to the whole practice of the crown, and to the uniform opinions given on all other occasions by its great law officers, ought to be very explicit, and accompanied by the circumstances under which it was given, and to which it was applied, before we can be assured that it is properly understood. In a pamphlet, written for the purpose of asserting the Indian title, styled Plain Facts,' the same opinion is quoted, and is said to relate to purchases made in the East Indies. It is, of course, entirely inapplicable to purchases made in America. ChalmersGeorge ChalmersGeorge Chalmers was a Scottish antiquarian and political writer.-Biography:Chalmers was born at Fochabers, Moray, in 1742. His father, James Chalmers, was a grandson of George Chalmers of Pittensear, a small estate in the parish of Lhanbryde, now St Andrews-Lhanbryde, in Moray, owned by the family...
, in whose collection this opinion is found, does not say to whom it applies; but there is reason to believe, that the author of Plain Facts is, in this respect, correct. The opinion commences thus:
- 'In respect to such places as have been, or shall be acquired, by treaty or grant, from any of the Indian princes or governments, your majesty's letters patent are not necessary.'
The words 'princes or governments,' are usually applied to the East Indians, but not to those of North America. We speak of their sachems, their warriors, their chiefmen, their nations or tribes, not of their 'princes or governments.' The question on which the opinion was given, too, and to which it relates, was, whether the king's subjects carry with them the common law wherever they may form settlements. The opinion is given with a view to this point, and its object must be kept in mind while construing its expressions.