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occupancy, either by purchase or by conquest, and gave also a right to such a degree of sovereignty as the circumstances of the people would allow them to exercise,
The power now possessed by the Government of the United States to grant lands, resided, while we were colonies, in the Crown or its grantees. The validity of the titles given by either has never been questioned in our courts. It has been exercised uniformly over territory in possession of the Indians. The existence of this power must negative the existence of any right which may conflict with or control it. An absolute title to lands cannot exist at the same time in different persons, or in different govern ments. An absolute must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognize the absolute title of the Crown, subject only to the Indian right of occupancy, and recognize the absolute title of the Crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians.
We will not enter into the controversy whether agriculturists, merchants, and manufacturers have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits. Conquest gives a title which the courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be respecting the original justice of the claim which has been successfully asserted. The British Government, which was then our Government, and whose rights have passed to the United States, asserted a title to all the lands occupied by Indians within the chartered limits of the British colonies. It asserted also a limited sovereignty over them, and the exclusive right of extinguishing the title which occupaney gave to them. These claims have been maintained and established as far west as the Mississippi River by the sword. The title to a vast portion of the lands we now hold originates in them. It is not for the courts of this country to question the validity of this title or to sustain one wbich is incompatible with it.
Although we do not mean to engage in the defense of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested froin them.
The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established, az a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. Most usually they are incorporated with the victorious nation, and become subjects or citizens of the government with which they are connected. The new and old members of society mingle with each other; the distinction between them is gradually lost, and they make one penple. Where this incorporation is practicable, humanity demands, and a wise policy requires, that the right of the conquered to property should remain unimpaired; that the new subject should be governed as equitably as the old, and that contidencé in their security should gradually banish the painful sense of being separated from their ancient connections and united by force to strangers.
When the conquest is complete, and the conquered inhabitants can be blended with the conquerors, or safely governérl as a distinct people, public opinion, which not even the conqueror can disregard, imposes these restraints upon him; and he cannot neglect them without injury to his fame and hazard to his power.
But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness; to goyern them as a distinct people was impossible, because they were as brave and highspirited as they were fierce, and were ready to repel by arms every attempt on their independence. What was the inevitable consequence of this state of things? The Europeans were under the necessity either of abandoning the country and relinquishing their pompous claims to it, or of enforcing those claims by the sword, and by the adoption of principles adapted to the condition of a people with whom it was impossible to mix, and who could not be governed as a distinct society, or of remaining in their neighborhood, and exposing themselves and their families to the perpetual hazard of being massacred.
Frequent and bloody wars, in which the whites were not always the aggressors, unavoidably ensued. European policy, numbers, and skill prevailed. As the white population advanced, that of the Indians necessarily receded. The country in the immediate neighborhood of agriculturists became unfit for them. The game fled into thicker and more unbroken forests, and the Indians followed. The soil, to which the Crown originally claimed title, being no longer occupied by its ancient inhabitants, was parceled out according to the will of the sovereign power, and taken possession of by persons who claimed immediately from the Crown, or mediately through its grantees or deputies.
That law which regulates, and ought to regulate in general, the relations between the conqneror and conquered, was incapable of application to a people under such circumstances. The resort to some new and different rule, better adapted to the actual
stato 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 land and cannot be questioned. So, too, with respect to the concomitant principle that the Indian inbabitants 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, yot, 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
" 6 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 vs. 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, ve 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 ravages 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 governing 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 Justice 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 say. 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 proximity 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 daugerous 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 av underlying infraction of the great law of humanity, of common justice, ir 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 cousequences, 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 fendalistic 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 bequeathed 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 dnly proved, and be recorded within one year after proper magistrate's courts, and registers shall be appointed for that purpose; and personal property may be transferred by delivery, saving, however, to the French and Canadian inbabitants, 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 ce 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. It is purely allodial, with all the incidents pertaining to that title as substantial as in the infancy of Teutonic civilization. Following in the wake of this fundamental reform in our State land laws are several others which constitute appropriate 'corollaries. The statute of uses was never adopted in the public-land States, and hence the complex distinction between uses and trust has never embarrassed our jurisprudence. We have, however, adopted one of the methods of conveyance to which that statute gave rise, to wit: the method of bargain and sale. Feoffments, fines, and recoveries are entirely dispensed with, as also livery of seisin and its consequences. A conveyance is completed by the execution and delivery of the deed; entailments and perpetuities are barred by the statute, which renders void all limitations beyond persons in being and their immediate issue, and which provides that an estate tail shall become a fee-simple in the heirs of the first grantee. All joint interests in land are reduced to tenancies in common. Joint tenancies never had an existence, and coparceners are now on a footing of tenants in common. Real actions, with their multitudinous technicalities, never had an existence in our western jurisprudence, though some of the fictions of this form of action are tolerated, e. g., the allowance of fictitious parties to a suit. Ejectment is now the universal remedy, being the only action for the recovery of lands. Action by ejectment is limited to twenty-one years, but refractory tenants may be more speedily dispossessed by the action for forcible entry and detainer, A dispossessed claimant may, at the option of the ejector, either pay for the land, or receive pay for the improvements. For waste the party is liable in simple dainages, and no more. A tenant in dower forfeits the place wasted. In the older States we see evidences of the reflex benefits of the land legislation of our public-land States. The Pennsylvania supreme court (5 Rawle, 112) holds that 66 our property is allodial, and escheat takes place, not upon principles of tenure, but by force of our statutes to avoid the uncertainty and confusion inseparable from the recognition of a title founded in priority of occupancy." Chancellor Kent says that tenure to some extent pervades real property in the United States. The title is essentially allodial yet designated by the feudal terms fee-simple and free, and common socage. These technicalities mar the municipal jurisprudence of several States, though no vestige of feudal tenure remains, and ownership, free and independent, is the real character of individual title to the soil. By the statute of February 20, 1787, New York abolished all military tenures, transferring them into free and common socage and making all State grants entirely allodial.
The revised statutes going into effect in 1830 abolished the last shadow of feudal tenure and made allodial proprietorship the sole title to private land, and this property liable to forfeiture only by escheat.
In other States these tenures have either been formally changed into allodial; or if they retain the technicalities of feudalism, the latter receive an allodial signification. An estate in fee-simple means one of inheritance, having lost its beneficiary or usufructuary character.
It will be seen from the facts recited that the liberal principles embodied in our public-land policy have reconstructed to a great extent the legal basis of our social order by liberalizing the ideas of land ownership.
The General Government set this glorious example, and the justice and expediency of its policy in this respect are now universally admitted.