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State officers and soldiers, each claimant to select and lay off his legal complement in such locality as he' might choose, without reference to any public standards of survey. 20. Grants of lands, whether located upon the soil or not, made to individuals under the laws of the State, including all inceptive or perfected rights, whether acquired by formal entry, by actual occupancy, by preëmption privilege, or by special reser. vation. 3d. Entries under the law of 1783, in the office of one John Armstrong, an entry taker, whose legal status it is not easy now to as. certain, conflicting with prior claims; such entries were to be relocated upon unappropriated lands elsewhere.
By a report made to Cougress, November 10, 1791, by Thomas Jefferson, Secretary of State, it appears that the Indian title within the ceded territory had been extinguished to about 7,500,000 acres, whereas the claims already reported amounted to 8,118,601 acres, many of them located within the limits guaranteed to the Cherokees and Chickasaws by the treaties of Hopewell and Holston.
The General Government, by treaty, purchase, or conquest, extin. guished, at different times, the Indian title to the remaining lands in Tennessee, but the North Carolina claims absorbed the great mass of the eligible lands. Finding that the remnant would scarce pay expense of administration, Congress, by act of February 18, 1841, made Tennes. see its agent for the disposal of all unappropriated lands within the State, granting as a recoinpense any surplus after satisfying the North Carolina claims.
By the above-cited acts of several of the thirteen States originally constituting the American Union, the General Government came in possession of all that portion of the public domain lying east of the Mississippi and north of the thirty-first parallel. The basis of the claims of these States, as given in the foregoing, it will be seen, was the grants from the Crown of England. The power of the King thus to constitute new provinces, and subsequently to annul chartered privi. leges, involves constitutional questions, under the system of laws then subsisting, with which it would be presumptuous now to grapple. It should; however, be mentioned in this connection that George III, by proclamation of 7th October, 1763, organizing the territory acquired from France by the treaty of Paris of February 10, 1763, into four new governments, reserved for the use of the Indians all land and territories not included in those governments, or within the limits of the Hudson Bay Company, “as also all lands and territories lying to the westward of the sources of the rivers which fall into the sea from the west and northwest, as aforesaid ; and we do hereby strictly forbid, on pain of our displeasure, all our loving subjects from making any purchases or settlements whatever, or taking possession of any of the lands above reserved, without our special leave and license for that purpose first obtained." The fact that the King felt himself bound to appeal to the courts and to vacate the charters of Virginia and Massachusetts by writs of quo warranto, would seem to indicate that in that day the royal prerogative, even in the estimation of the Stuart dynasty, did not embrace the power of annulling charters. A violation of contract on the part of grantees was made the ground of vacating the charters. George III, however, assumed bigher ground, and claimed by mere proclamation, without cousulting Parliament, to restrict the territory of the first and second colonies of Virginia, of Massachusetts, and Connecticut, to the watershed of the Atlantic streams, whereas the original charters extended their jurisdiction westward to the Pacific Ocean. By the colonies themselves, however, this proclamation of George III seems to
have been treated as a nullity. Virginia, Connecticut, Massachusetts, New York, North and South Carolina, and Georgia claimed the fulí quota of territory under their original charters, with the exception, however, of such areas as they, by negotiation, had acknowledged to have been alienated to other colonies. Thus Connecticut and Massachusetts had yielded those portions of their original charters which were covered by the actual settlements of New York and Pennsylvania. But where a right is yielded by diplomacy this concession does not involve the negation of the original right itself. Connecticut, after vainly contending with Pennsylvania in regard to the zone between the forty-first and forty-second parallels, yielded the point under the decision of the court constituted under the articles of confederation, but pressed her claim to the same zone west of Pennsylvania to the Mississippi River.
To many of that day the area acknowledged as ours by the treaty of peace of 1783 with Great Britain, appeared sufficiently broad for the greatest possible expansion of our American nationality, but even then there were minds sufficiently enlightened and progressive to forecast something of that splendid career which we have since partially realized. To such the idea of “an ocean-bound republic” was already unfolding itself. The circumstance which then began to form this idea was the last accession to the public domain consummated ere our foreign acquisitions began.
On the 30th of April, 1803, the year following the cession of Georgia, Napoleon, as First Consal, meditating a rupture with England, ceded to the United States the large, imperfectly-defined province of Louisiana, lest it should fall into the hands of his enemy. The consideration for this cession was that the United States should pay 60,000,000 francs, besides discharging sundry claims of her own citizens against France. This action of the treaty-making power, put forth by an administration committed to the doctrine of strict construction, shows the recognition of power in the General Government in accordance rather with the spirit than the letter of the Constitution.
Louisiana had been claimed by France by right of discovery, La Salle having visited it and discovered the mouth of the Mississippi in 1691. After an abortive attempt at settlement by Iberville, in 1699, granted, in 1712, by Louis XIV to M. Crozat, and named' Louisiana. Five years later it passed into the hands of John Law and his Mississippi Company, on the financial explosion of which it reverted to the Crown. Transferred to Spain in 1762, it was retroceded by the treaty of San Ildefonso, October 1, 1800.
The boundaries of Louisiana, as ceded by Napoleon to the United States, were indefinite, the treaty itself, according to Chief Justice Marshall, having been couched in terms of studied ambiguity." Questions of boundary between Louisiana and Florida were involved which require some explanation. By the proclamation of George III, of October 7, 1763, before cited, the province of West Florida was constituted as extending from the Mississippi River on the west to the Appalachicola on the east. During the revolutionary war, in 1778, the British troops in Florida marched into Georgia, capturing Savannah. The Spanish authorities of Louisiana, taking advantage of this disposition of the British forces, organized an expedition to Florida, and had so far succeeded in conqnering both East and West Florida, that, upon the general pacification at the close of the revolutionary war, both provinces were retroceded to Spain.
When Louisiana was transferred to us by Napoleon in 1803, it was with the same limits as when France formerly possessed it, and as Spain
possessed it at the time of the treaty of San Ildefonso. Spanish diplomacy, however, found it convenient to consider British occupancy as permanently dissevering West Florida from Louisiana, which it claimed as a new conquest from Great Britain ; but the United States, in 1811, took military possession of the country west of Perdido River, tous insisting upon the original limits of Louisiana as claimed by France.
This imbroglio was still further complicated by events on the Florida border during our last war with England, and the reprisals made by General Jackson for the repeated infractions of neutrality by the Spanish authorities. But all grounds of difficulty and all questions of jurisdiction were finally superseded by “the treaty of amity, settlement, and limits," concluded with Spain February 22, 1819. By this treaty the provinces of East and West Florida were ceded to the United States, and the undefined boundary between Louisiana and Mexico was settled as running up the line of the Sabine River to the Red River, thence by the course of that river to the one hundredth meridian, thence north to the Arkansas River, thence following the course of that river to the forty-second parallel, and thence westward to the Pacific Ocean. The northern boundary of the Louisiana purchase, from the Lake of the Woods to the Rocky Mountains, was established along the forty-ninth parallel by the second article of the convention of October 20, 1818, with Great Britain. West of the Rocky Mountains, by treaty of June 15, 1816, with the same power, the international frontier was continued along the forty-ninth parallel to the middle of the channel separating Vancouver's Island from the mainland, and thence through the Straits of Fuca to the Pacific. The United States held an independent claim to that portion of Louisiana called Oregon, based upon the discovery of the mouth of the Columbia River by Captain Gray in 1792. The Louisiana purchase, the limits of which were thus ascertained by tedious and protracted diplomatic litigation, embraced those portions of Alabama and Mississippi south of the thirty-first parallel, the entire surface of the States of Louisiana, Arkansas, Missouri, Iowa, Nebraska, and Oregon, ali of Minnesota west of the Mississippi River, all of Kansas except a small corner west of the one hundredth meridian and south of the Arkansas River, all of Dakota, Montana, Idaho, Washington, and Indian Territories, with parts of Wyoming and Colorado.
The annexation of Texas in 1845 led to a war with Mexico, at the close of which, in 1818, by the treaty of Guadalupe Hidalgo, we acquired a large territory from Mexico. Subsequently, by treaty of 1853, another strip, known as the Gadsden Purchase, embracing the Mesilla Valley, was added, in consideration of which, and of the abrogation of sundry stipulations in the treaty of Guadalupe Hidalgo, our Government paid to Mexico $10,000,000.
These Mexican cessions are now covered by the States of Texas, California, and Nevada, the Territories of Utah, Arizona, and New Mexico, and parts of Wyoming and Colorado. Texas, on entering the Union, stipulated for the possession and disposal of her own public lands. Subsequently, however, by act of November 25, 1850, she accepted propositions from the General Government ceding her claims to reimbursement for the surrender of her military, naval, and revenue establishments, and her lands north of the parallel 36° 30', and between that parallel and the thirty-second, lying west of the one hundred and third meri. dian; the consideration of this cession was the payınent of $10,000,000. The ceded lands are now included in Kansas and New Mexico.
The purchase of Alaska from Russia, by the treaty of March 30, 1867, enlarged:our public domain to its present dimensions. Russia claimed
this vast territory by right of prior discovery. Captain Behring, who was sent out in 1733 by Empress Ann, discovered the mainland of North America in latitude 580 28', ou the 18th of July, 1741. His colleague, Captain Tschirikow, being separated from him in a storm, sighted the same coast in latitude 56°, on the 15th of July, 1741, while Behring sailed up the coast, discovering many of the islands of the Aleutian Archipelago, some of which, however, he had seen duriug his previous voyage in 1728. The coast of British Columbia was discovered in 1790 by Vancouver, upon the strength of which England claimed its sovereignty. The discovery of the coast of Oregon by Captain Gray, in the same year, formed the basis of a claim of our Government to the sovereignty of the whole coast, at least as far north as the Russian discoveries. The line separating us from those discoveries was fixed as the parallel of 54° 40' in the treaty made with Emperor Nicholas in 1824. The territory between that parallel and the forty-ninth was recognized as belonging to the English, by virtue of Vancouver's discoveries. North of 510 40' the claim of Russia seems never to have been questioned. This territory was offered to the United States for a pecuniary cousideration during the Crimean war in 1854, by Baron Stoekl, then Russian envoy at Washington, but this offer was declined by the Pierce administration. During the administration of Buchanan unofficial negotiations were set on foot by our Cabinet for the purchase of Alaska, the sum of $5,000,000 being named as the price, but significant intimations were received that Russia expected a higher price. After the suppression of the rebellion the subject was again agitated in private and official circles. The legislature of Washington Territory, in January 1866, memorialized the President in behalf of the immediate acquisition of the Russian territories of North America. A strong pressure was brought to bear upon both the legislative and executive departments of the General Government. When the fact became generally known that the lease of the franchises of the Russo-American Fur Company by the Hudson Bay Company would expire in June 1867, and would probably be renewed unless we acquired the territory in the meanwhile, the anxiety for the measure increased. Formal negotiations were entered into between Baron Stoekl, the Russian minister at Washington, and Hon. W. H. Seward, Secretary of State, resulting in the formation of the treaty of April 30, 1867, the signatures of the plenipotentiaries being affixed at 4 o'clock on the morning of that day. The consideration of the transfer of the territory named in the treaty was $7,200,000.
FOREIGN TITLES-LIBERAL POLICY PURSUED BY THE UNITED STATES
IN RECOGNIZING AND CONFIRMING TITLES NOT MERELY COMPLETE GRANTS, BUT INCHOATE CLAIMS DERIVED FROM FOREIGN GOVERNMENTS TO LAND WITHIN THE LIMITS OF CESSIONS OF TERRITORY.
In all the above-detailed accessions of territory, whether from States in the Union or from foreign powers, considerable tracts were found already appropriated by private owners under the systems of law previously in force. Besides these there were inchoate titles from former sovereign authority, awaiting confirmation by our Government, and lo. cation upon the soil. The action of the United States in all such cases was based upon the highest conception of justice. In some cases these titles were expressly secured by treaty stipulation. But the Supreme Court of the United States, in the celebrated case of United States rs. Percherman, (7 Peters, 86,) held that “the modern usage of nations, which has become a law, would be violated; that sense of justice and
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 eacb 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 awicable 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 citi. zens 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 vs. 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 rulo 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