A legal fiction becomes law once property ownership rests upon it

Evidence

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. — Supreme Court of the United States (Marshall Court, 1823), Johnson & Graham’s Lessee v. M’Intosh,…, 253

Categorization

• XREF: This is the heart of the discovery doctrine’s legal formalism — the claim that indefensible origins become legitimated by time and acquired property, which connects to the polyad theme of law as storytelling/institutions masking colonial violence, echoing concepts in Whyte on settler-colonialism. — connects to: Discovery vested absolute title in Europeans subject only to Indian occupancy — Supreme Court of the United States (Marshall Court, 1823), Johnson & Graham’s Lessee v. M’Intosh,…, 259; Legal rights exert real effects despite being fictitious entities — Jeremy Bentham, The Panopticon Writings, 71; Legal fictions once classified slaves as real estate and corporations as persons. — Lawrence M. Friedman, A History of American Law, 95 (+1 more)
• DEEPTHINKING: Marshall candidly admits the doctrine conflicts with natural right yet insists courts must sustain it because property depends on it — a raw admission that law manufactures legitimacy, dense enough to sit with for days.

Related

• Discovery vested absolute title in Europeans subject only to Indian occupancy (similarity 0.81)
• Legal fictions once classified slaves as real estate and corporations as persons. (similarity 0.78)
• Discovery of land granted title against rival Europeans but not against natives. (similarity 0.78)

Broader Connections

• Legal rights exert real effects despite being fictitious entities #corroborates (0.80) — Jeremy Bentham, The Panopticon Writings, 71
• Legal fictions once classified slaves as real estate and corporations as persons. #exemplifies (0.78) — Lawrence M. Friedman, A History of American Law, 95