all the productive funds which those lands may hereafter create. The title is in the United States, by the treaty of peace with Great Britain, and by subsequent cessions from France and Spain, and by cessions from the individual states; and the Indians have only a right of occupancy, and the United States possess the legal title, subject to that occupancy, and with an absolute and exclusive right to extinguish the Indian title of occupancy either by conquest or purchase. The title of the European nations, and which passed to the United States, to this immense territorial empire, was founded on discovery and conquest; and, by the European customary law of nations, prior discovery gave this title to the soil, subject to the possessory right of the natives, and which occupancy was all the right that European conquerors and discoverers, and which the United States, as succeeding to their title, would admit to reside in the native Indians. The principle is, that the Indians are to be considered merely as occupants, to be protected while in peace in the possession of their lands, but to be deemed incapable of transferring the absolute title to any other than the sovereign of the country. The constitution gave 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, and to admit new states into the Union. Since the constitution was formed, the value and efficacy of this power have been magnified to an incalculable extent, by the purchase of Louisiana and Florida; and, under the doctrine contained in the cases I have referred to, Congress have a large and magnificent portion of territory under their absolute control and disposal. This immense property has become national and productive stock, and Congress, in the administration of this stock, have erected temporary governments under the provisions of the ordinance of the Congress under the confederation; and they have appointed the officers to each territory, and allowed delegates in Congress to be chosen by the

inhabitants every second year, and with a right to debate, but not to vote, in the house of representatives."

The unpatented lands belonging to the United States, within the states of Ohio, Indiana, Illinois, and the territory of Michigan, arose from cessions from the states of Virginia, Massachusetts, Connecticut, and New-York, before the adoption of the present constitution of the United States. North Carolina, South Carolina, and Georgia, made similar cessions of their unpatented lands, and which now compose the states of Tennessee, Alabama, and Mississippi. The lands so ceded, were intended to be, and were considered, as constituting a common fund, for the benefit of the Union; and when the states in which the lands are now situated were admitted into the Union, the proprietary right of the United States to those unimproved and unsold lands was recognised. Those lands belong to the United States, as part of their public domain, subject to the Indian right and title of occupancy, in all cases in which the same has not been lawfully extinguished. It is not to be concealed, however, that the title of the United States to the unappropriated lands, lying within the limits of the separate states, has been seriously questioned by some of them, as by Mississippi, Illinois, and Indiana. The latter state, in January, 1829, advanced a claim to the exclusive right to the soil and eminent domain of all the unappropriated lands within her acknowledged boundaries; and in 1830 Mississippi put forth a similar claim. But the cessions of the territorial claims of the separate states to the western country, were called for by the resolutions of Congress of the 6th of September and 10th of October, 1780, and were made upon the basis that they were to be " disposed of for the common benefit of the United States." It was likewise provided by

a Acts of 7th of August, 1739; January 14th, 1805; March 3d, 1817; February 16th, 1819; April 24th, 1820.

b Journals of the Confed. Congress, vol. 6. 123. 147. Ibid. vol. 8. 256.259. Ibid. vol. 9. 47. Ibid. vol, 10, 92. Ibid, vol. 11, 160, Ibid, vol. 12, 92.

Effect of

public records.

the ordinance of July 13, 1787, for the government of the territory of the United States, north-west of the river Ohio, that the legislatures of the districts or new states to be erected therein, should "never interfere with the primary disposal of the soil by the United States, in Congress assembled, nor with any regulations Congress may find necessary for securing the title in such soil to the bona fide purchaser." (5.) By the constitution of the United States, Congress were, by general laws, to prescribe the manner in which the public acts, records, and judicial proceedings of every state, should be proved, and the effect thereof in every other state. In pursuance of this power, Congress, by the act of May 26, 1790, provided the mode by which records and judicial proceedings should be authenticated, and then declared, that they should have such faith and credit given to them in every court within the United States, as they had by law or usage in the courts of the state from whence the records were taken. Under this act it was decided, in the case of Mills v. Duryee," that if a judgment, duly authenticated, had, in the state court from whence it was taken, the faith and credit of the highest nature, viz. record evidence, it must have the same faith and credit in every other court. It was declaring the effect of the record, to declare the faith and credit that were to be given to it. The constitution intended something more than to make the judgments of state courts prima facie evidence only. It contemplated a power in Congress to give a conclusive effect to such judgments. A judgment is, therefore, conclusive in every other state, if a court of the particular state where it was rendered would hold it conclusive. Nil debet is not a good plea in a suit on a judgment in another state, because not a good plea in such state. Nul tiel record is the proper plea in such a case. This same decision was

b

followed in Hampton v. M'Connell, and the doctrine con

tained in it may now be considered as the settled law of the land. It is not, however, to be understood, that nul tiel record is, in all cases, the necessary plea; but any special plea may be pleaded which would be good to avoid the judgment in the state where it was pronounced. And in Mayhew v. Thatcher, the court would seem to imply, that a judgment in one state, founded on an attachment in rem, would not be conclusive evidence of the debt in other states, if the

b

a Shumway v. Stillman, 4 Cowen, 292.

b 6 Wheaton, 129.-In Thurber v. Blackbourne, 1 N. H. Rep. 242. it was held that nil debet was a good plea to debt on a judgment of another state, when it did not appear by the record that the defendant had notice of the suit. And in Cunningham v. Buckingham, 1 Hammond's Ohio Rep. 264. and Hoxie v. Wright. 2 Vermont R. 263. the judgment of another state, regularly obtained, when the defendant had been served with process, or had otherwise appeared, was held to be conclusive evidence of the debt. But the defendant must have had due notice to appear, or must have actually appeared to the suit, or the judgment of another state will not be deemed of any validity. This is a plain principle of justice, which pervades the jurisprudence of this and of all other countries. Killburn v. Woodworth, 5 Johnson's Rep. 37. Aldrich v. Kinney. 4 Conn. Rep. 380. Bissell v. Briggs, 9 Mass. Rep. 462. Fisher v. Lane, 3 Wils. 197. Buchanan v. Rucker, 9 East, 192. Benton v. Burgot, 10 Serg. & R. 240. Rogers v. Coleman, Hardin, 413. Borden v. Fitch, 15 JohnThe doctrine in Mills v.

son, 121. Hall v. Williams, 6 Pick. 232. Duryee, is to be taken with the qualification, that in all instances the jurisdiction of the court rendering the judgment may be inquired into, and the plea of nil debet will allow the defendant to show that the court had no jurisdiction over his person. It is only when the jurisdiction of the court in another state is not impeached, either as to the subject matter or the person, that the record of the judgment is entitled to full faith and credit; and if the suit in another state was commenced by the attachment of property, the defendant may plead in bar that no process was served on him, and that he never appeared, either in person or by attorney. Starbuck v. Murray, 5 Wendell, 148. A special plea in bar of a suit on a judgment in another state, to be valid, must deny, by positive documents, every fact which would go to show that the court in another state had jurisdiction of the person, or of the subject matter. Harrod v. Barretto, 1 Hall's N. Y. Rep. 155.

Power of

Congress

defendant had not personal notice of the suit, so as to have enabled him to defend it.

(6.) Congress have authority to provide for calling forth over the the militia to execute the laws of the Union, suppress insur

militia.

rections, and repel invasions; and to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States; reserving to the states, resepectively, the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by Congress. The President of the United States is to be the commander of the militia, when called into actual service. The act of 28th of February, 1795, authorized the President, in case of invasion, or of imminent danger of it, to call forth such number of the militia most convenient to the scene of action as he might judge necessary. The militia so called out are made subject to the rules of war; and the law imposes a fine upon every delinquent, to be adjudged by a court martial composed of militia officers only. These militia court martials are to be held and conducted in the manner prescribed by the articles of war; and the act of 18th of April, 1814, prescribes the manner of holding them.

During the war of 1812, the authority of the President of the United States over the militia, became a subject of doubt and difficulty, and of a collision of opinion between the general government and the governments of some of the states. It was the opinion of the government of Connecticut, that the militia could not be called out, upon the requisition of the general government, except in a case declared, and founded upon the existence of one of the specified exigencies; that, when called out, they could not be taken from under the command of the officers duly appointed by the states, or placed under the immediate command of an officer of the army of the United States. Nor could the United States lawfully detach a portion of the privates from the body of the company to which they belonged, and which