right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated, and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved, but their relation to each other and their rights of property remain undisturbed. If such be the modern rule, even in cases of conquest, who can doubt its application to the case of an amicable cession of territory? Had Florida changed its sovereign by an act containing no stipulations respecting the property of individuals, the rights of property in all those who became citizens of the new government would remain unaffected by the change." The court further argues that the former sovereign power, having granted its interests in the soil to private owners, had no interest to convey by treaty to this government. Hence the cession of sovereignty could not convey with it the title to those portions of the soil which were covered by prior grants. These principles of public law, so luminously set forth in the above decision, have also controlled the action of the legislative and executive departments of the Government.

Vested rights acquired under former jurisdictions have ever been held sacred.

INDIAN USUFRUCTUARY INTERESTS.

The case of the aboriginal occupants of the public domain rests upon different principles and demands far different treatment. The legal status of the Indian tribes, and of the individual members of those tribes, has been defined with sufficient clearness in several decisions of the Supreme Court of the United States. In the cases of the Cherokee Nation vs. Georgia, (5 Peters, 1,) and Worcester vs. Georgia, (6 Peters, 515,) the Indian tribes residing within the United States are recognized in some sense as political bodies, not as foreign nations nor as domestic nations, but still possessing and exercising some of the functions of nationality. They hold a relation of wardship to the General Government and are subject to its control. A State legislature has no jurisdiction over the Indian territory contained within the territorial limits of the State; but in the case of New York vs. Dibble, (21 Howard, 366,) it was decided that the State holds the sovereign police authority over the persons and property of the Indians, so far as necessary to preserve the peace and protect them from imposition and intrusion.

In regard to right of soil it was settled in the case of the United States vs. Rogers, (4 Howard, 567,) that the Indian tribes are not the owners of the territories occupied by them. These are vacant or unoccupied public lands belonging to the United States.

In the case of Johnson rs. McIntosh, (8 Wheaton, 543,) it was held that the Indian tribes were incompetent to transfer any rights to the soil, and that any such conveyances were void ab initio, the right of property not subsisting in the grantors. The right of making such grants was originally in the Crown, but by the treaty of 1783 it was surrendered to the United States. In the previous pages is shown the process by which several of the States originally composing the American Union divested themselves of this right by transferring both territorial jurisdiction and title to the soil to the General Government. In the case last mentioned Chief Justice Marshall, in delivering the opinion of the court, thus grounded the right of the Government upon prior discovery : The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold and assert in themselves the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of

du moins un jugement. Il annonçait hautement que si le souverain Pontife différait de se prononcer, il retournerait en France et reprendrait l'Avenir.

L'abbé Lacordaire pensait, au contraire, que, n'étant pas approuvés formellement, et ne pouvant parvenir à l'être, il convenait de quitter Rome et de laisser l'Avenir.

Ce dissentiment le sépara de ses amis. Disons plus: son œil perçant pénétrait dès lors tout le ravage intérieur que l'improbation du Saint-Siége, secrète encore, mais certaine, opérait déjà dans l'âme révoltée de M. de Lamennais. Dès ce moment (il en existe un témoin vivant et des preuves écrites irrécusables), l'abbé Lacordaire pressentait la chute du maître. Il partit pour la France, le 15 mars 1832, quatre mois avant ses compagnons. Eux-mêmes revinrent au mois de juillet, écrivant qu'ils revenaient à Paris continuer leur journal, puisque Rome ne voulait rien décider.

Résolu à ne point recommencer l'Avenir, l'abbé Lacordaire n'attendit point à Paris M. de Lamennais, et partit au mois d'août pour l'Allemagne.

Le hasard voulut que les voyageurs revinssent en France par Munich, et que M. de Montalembert découvrît fortuitement le nom de l'abbé Lacordaire parmi les noms imprimés sur une liste d'auberge.

C'est à Munich, au sortir d'un dîner offert aux voyageurs par des hommes distingués ou savants de l'Allemagne, que les trois Français apprirent l'encyclique de Grégoire XVI.

Revenus tous ensemble et tristes à Paris, mais déjà résolus à Munich, sur les sollicitations de l'abbé Lacordaire, avant même la réception de l'encyclique, de s'abstenir de politique, au moins jusqu'à une époque indéterminée, les journalistes condamnés se décident, non sans résistance de la part de M. de Lamennais, à se soumettre sans réserve, et leur première démarche, le lendemain de leur arrivée, est de publier leur adhésion formelle et pure et simple dans les journaux.

La condamnation pontificale tombait plus lourdement sur la tête illustre et vieillie de M. de Lamennais que sur celle de ses deux jeunes collaborateurs. Malgré de précédents dissentiments déjà graves, l'abbé Lacordaire ne voulut pas laisser seul M. de Lamennais. Il l'accompagna à la Chesnaie avec M. l'abbé Gerbet, espérant le sauver encore, et y passa les mois d'octobre et de novembre.

Sans parler de sa conscience de prêtre et de chrétien, la seule rai

state of things, was unavoidable. Every rule which can be suggested will be found to be attended with great difficulty.

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 afterward sustained; if a country has been acquired and held under it; if property of the great mass of the community originates in it, it becomes the law of the laud 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.

It will be seen that the court confined itself to the discussion of questions essential to a statement of the actual law governing the relations of the Indian tribes, and declined entering upon several abstract questions suggested to its consideration. It assumes the concrete fact that the General Government holds the right of eminent domain as well as the title to the soil in the public lands, subject, however, to the right of occupancy by the Indians. The Constitution of the United States gives to Congress the "power to dispose of and to make all needful rules and regulations respecting the territory, or other property, belonging to the United States." The "territory" or soil, here classed with other prop erty, may be disposed of under rules and regulations prescribed by the legislative authority. The question now arises whether Indian occupancy is an indefeasible right, or whether it is merely a privilege which the Government may withdraw when the interests of civilization or the pressure of immigration may demand it.

According to the above rulings in the case of Johnson rs. McIntosh, the General Government has the right to terminate the occupancy of the Indians by "conquest or purchase." Does this involve the right of forcibly dispossessing them of that occupancy? This issue has never yet been presented.

Very large portions of the public domain have been acquired by peaceable purchase; other portions have been acquired by conquest, but in all these latter cases the first outbreak of actual war has been by the Indians. Their various tribes have been successively subjugated, and, as the price of peace, have been compelled to part with a portion of their hunting-grounds and to move on to reservations. In our acquisition of Indian territory, and in reducing the wilderness to civilization, we may, through considerations of policy rather than of abstract right, continue to avoid the question. The mere pressure of civilized settlements contracts the range of savage life, by removing the forests in the depths of which the wild game has been able to repair the annual rav ages of hunting and trapping, thus preserving a fund of subsistence of spontaneous growth. This deprivation of abundant subsistence, together with the introduction of physical diseases and immoral habits, has produced in the aboriginal tribes that reckless temper which has led them into hostility with the whites, accompanied by horrors of massacre which have roused the most vindictive feelings of the border populations. It is impossible for any administrative power of government to control such evils, growing as they do out of a strange and anomalous mingling of savage and civilized life. All the practical influence gov erning this case seems to be averse to the Indians; they are daily diminishing in numbers, and at no remote period they will be among the extinct races of men.

The question of natural right presented but not argued by Chief Jus

tice Marshall in the last-cited decision of the United States Supreme Court, viz., "Whether agriculturists, merchants, and manufacturers have a right, on abstract principles, to expel hunters from the territories they possess, or to contract their limits," would have opened up the whole question at issue between civilization and the savage state. Is it in accordance with justice and natural right for a small number of persons to monopolize large areas of the earth's surface, merely in order that they may escape the obligations of industry which a Divine decree has made the price of subsistence? The same area brought under high cultivation will support a population many thousands of times greater than the number of savages that can gather a precarious subsistence from its spontaneous production. In other portions of the earth crowded populations await relief by immigration, which, however, is restrained by the tomahawk and scalping knife-by the nameless horrors of sav age warfare.

But this is not all; the life of the hunter, merely appropriating the spontaneous products of the earth, is utterly incompatible with the development of the higher elements of man. The savage state, instead of realizing an approach to that poetic ideal, the golden age, is shown by our increasing acquaintance with it to be but a scene of squalid misery and vindictive brutalization. Its evils are enhanced by the prox imity of civilization. If, then, the arguments of sentimental philosophers in favor of savage life are of any force, they prove too much. From their premises it may be argued that it is the duty of civilized people to lay aside and repudiate civilization as a destructive and unnatural condition of our race, one of those dangerous refinements which should be resisted and reversed. The American people deeply deplore and reprobate the destruction of the Indian tribes, in spite of the utmost efforts of the General Government; but still the popular insight detects an underlying infraction of the great law of humanity, of common justice, in the Indian monopoly of the continent. As action and reaction are equal and reciprocal no less in the moral than in the physical world, it is not at all surprising that this great fundamental wrong in the social arrangements of our race has been productive of unhappy consequences, or that these have fallen with especial weight upon the heads of their unconscious agents and instruments. The failure of our civilization to carry out the law of kindness upon which it is constituted will of course bring its own penalty. But whatever be the moral or legal elements of the question, it is certain that the reign of barbarism on our continent is nearly ended. Civilization, unbroken by episodes of savage life, will soon extend over the whole continent. The end of the present century will probably witness the development of a world-wide social system, a reciprocity of trade, and a systematic development of industry in all the nations of the earth. This glorious consummation will be largely due to the acquisition and disposal of our public domain by the General Government. No one influence has so broadened the area of free society. It has given scope for the colonization of the populations of Europe upon the American Continent, bringing with them the institutions, the arts, the habits, and the ideas of European civilization. It has reorganized society upon the basis of democratic equality, and has obliterated that legal stratification of privileged and unprivileged orders which still subsists in Europe. It has given a broad extension of the Anglo-Saxon political and social organism which was established by the successful issue of our revolutionary war. American society possesses a power of assimilation by which the most diverse elements of immigration have been fused into a common nationality. This power is largely due to the

common element of manhood which is recognized and cherished by our institutions. The basis of our free society is our landed system. The failure of the first aristocratic efforts at colonization upon the basis of feudalistic social organization now appears as an event giving decisive advantages to the development of freedom. Under the charter of King James I, the lands of the first and second colonies of Virginia were to be held by the mildest form of tenure, of free and common socage, which in many of the States of the Union has been transferred into allodial proprietorship.

AMERICAN LAND TITLES-ALLODIAL TENURES.

In the celebrated ordinance of 1787 of the old Continental Congress "for the government of the territory of the United States northwest of the Ohio River," which is the first general legislation of Congress on the subject of landed property, the leading incidents of feudalism were specially repealed. The second section is an epitome of progressive and revolutionary legislation, embracing many of the points on which the issues between social progress and reactionary conservatism have turned. It ordained and enacted "that the estates both of resident and non-resident proprietors in the said territory, dying intestate, shall descend to and be distributed among their children and the descendants of a deceased child in equal parts, the descendants of a deceased child or grandchild to take the share of their deceased parent in equal part among them; and where there shall be no chil dren or descendants, then in equal part to the next of kin in equal degree; and among collaterals, the children of a deceased brother or sister of the intestate shall have, in equal parts among them, their deceased parent's share; and there shall in no case be a distinction 'between kindred of the whole and half blood; saving, in all cases, to the widow of the intestate her third part of the real estate for life and one-third part of the personal estate; and this law, relative to descents and dower, shall remain in full force until altered by the legislature of the district. And until the governor and judges shall adopt laws as hereinafter mentioned, estates in said territory may be devised or be queathed by wills in writing, signed and sealed by him or her in whom the estate may be (being of full age) and attested by three witnesses; and real estate may be conveyed by lease and release, or bargain and sale, signed, sealed, and delivered by the person being of full age in whom the estate may be, and attested by two witnesses, provided such wills be duly proved and such conveyances be acknowledged, or the execution thereof duly proved, and be recorded within one year after proper magistrate's courts, and registers shall be appointed for that pur pose; and personal property may be transferred by delivery, saving, however, to the French and Canadian inhabitants, and other settlers of the Kaskaskias, St. Vincent's, and the neighboring villages, who have heretofore professed themselves citizens of Virginia, their laws and customs now in force among them relative to the descent and conveyance of property." This noble statute struck the key-note of our liberal system of land law, not only in the States formed out of the public domain, but also in the older States of the Union. The doctrine of tenure is entirely exploded; it has no existence, even in theory. Though the word may be used for the sake of convenience, it is with an accommodated signification from which the last vestige of feudal import had been eliminated. The individual title derived from the Government involves the entire transfer of the ownership of the soil.