domain as to right of representation, and adopted the whole body of congress for its legitimate government. Right of (4.) Congress have the exclusive right of pre-emption to all Indian lands. Indian lands lying within the territories of the United States. This was so decided in the case of Johnson v. M'Intosh.a Upon the doctrine of the court in that case, and in that of Fletcher v. Peck,b the United States own the soil, as well as the jurisdiction of the immense tracts of unpatented *258 lands included within their territories, and of *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 constitutione 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 a 8 Wheaton, 543. 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 under the constitutional power; and they have appointed the officers to each territory, and allowed delegates in congress to be chosen by the *inhabitants every second year, *259 and with a right to debate, but not to vote, in the House of Representatives.a The unpatented lands belonging to the United States, within the states of Ohio, Indiana, Illinois, Michigan, and the territory of Wisconsin, arose from cessions from the states of Virginia, Massachusetts, Connecticut and New-York, before the adoption of the present constitution of the United States.b * Ordinance of congress of 13th July, 1787. Acts of Congress of August 7th, 1789; January 14th, 1805; March 3d, 1817; February 16th, 1819; April 24th, 1820; March 30th, 1822. The acquisition of the foreign territories of Louisiana and Florida by the United States, by purchase, was to be supported only by a very liberal and latitudinary construction of the incidental powers of the government under the constitution. The objections to such a construction, which were urged at the time, are stated in 3 Story's Comm. 156-161. But the constitutionality of the acquisition of foreign territory, is vindicated, established and settled by the Supreme Court, as one necessarily flowing from the power of the Union to make treaties. American Ins. Co. v. Canter, 1 Peters' U. S. Rep. 511. It belongs, therefore, upon that principle, exclusively to the President, with the advice and consent of two-thirds of the members of the Senate present, to make the acquisition. But in 1845, congress, by joint resolution, under the power in the constitution, (art. 4, sec. 3,) that "new states may be admitted by the congress into this Union," admitted the foreign and independent state of Texas into the Union as a separate state, upon terms to which Texas afterwards acceded. Resolution of Congress, of March 1, 1845. This was giving a new legislative construction, of enormous efficacy and extent, to the constitutional power to acquire foreign states, and would appear to be contrary to the principle of construction recognised by the Supreme Court, that the annexation of foreign states out of the limits of the United States, must be the act of the treaty-making power. b That of New-York was made March 1st, 1781, under the authority of the act of the legislature of that state, of the 19th February, 1780. That of Virginia was made March 1st, 1784, under the authority of an act of the 20th December, 1783. That of Massachusetts, on the 19th of April, 1785, under the authority of the acts of that state, of 13th November, 1784, and 17th March, 1785; and that of Connecticut, on the 14th September, 1786, under the authority of an act of that state, of May, 1786. That of South Carolina, in August, 1787. The title to the lands be 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 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 stipulated by congress, in the last resolution, that the lands to be ceded should be disposed of for the common benefit of the United States; be settled and formed into distinct republican states, with a suitable extent of territory; become members of the American Union, and have the same rights of sovereignty, freedom and independence, as the other states. *260 It was likewise provided by *the ordinance of July 13th, 1787, for the government of the territory of the longing to the United States west of the Mississippi, is supported by treaties made with Great Britain, in 1783, 1818, 1872, and with France, in 1803, and with Spain, in 1820, and with Mexico, in 1831. Vide Elliott's American Diplomatic Code, Washington, 1834, 2 vols., which is a most valuable compilation of all the treaties down to that date, in which the United States have any interest. * Journals of the Confed. Congress, vol. vi. pp. 123. 147. Ibid. vol. viii. pp. 256. Ibid. vol. ix. p. 47. Ibid. vol. x. p. 92. Ibid. vol. xi. p. 160. Ibid. vol. xii. 259. United States northwest 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."a lic records, (5.) By the Constitution of the United States, congress were, Effect of pubby 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. (1) The constitution intended something more than to a For disposing of the lands of the United States, numerous land offices have been established by acts of congress, in the states of Ohio, Indiana, Illinois, Missouri, Louisiana, Mississippi, Alabama, Michigan and Arkansas, and in the territories of Wisconsin, Iowa and Florida. See Gordon's Digest of the Laws of the United States, 1837, pp. 321-389, in which all the statute provisions relative to the disposition of the public domain of the United States are collected, and clearly and neatly arranged and digested. By the act of congress of September 4th, 1841, c. 16, ten per cent. of the net proceeds of the sales of the public lands, to be made subsequent to the 31st of December, 1841, within the limits of the states of Ohio, Indiana, Illinois, Alabama, Missouri, Mississippi, Louisiana, Arkansas and Michigan, were to be paid to those states respectively; and the residue of those net proceeds, subject to certain provisoes, should be divided, half-yearly, among the twenty-six states of the Union, and the District of Columbia, and the territories of Wisconsin, Iowa and Florida, according to their respective federal representative population, as ascertained by the last census, to be applied by the legislatures of the said states to such purposes as they should direct. b7 Cranch, 481. (1) An action of debt will not lie against an administrator in one state, on a judgment obtained against a different administrator of the same intestate, appointed under the authority of another make the judgments of state courts prima facie evidence only. It contemplated a power in congress to give a conclusive effect to such judgments. (1) A judgment is, therefore, conclusive in every other state, if a court of the particular state where it was rendered would hold it conclusive. (2) 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. The same decision was followed in Hampton v. M'Connel,a and the doctrine *261 contained *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.b And in Mayhew v. Thatcher, the court would seem to im 3 Wheaton, 234; and in Wernwag v. Pawling, 5 Gill & Johnson, 500. b Shumway v. Stillman, 4 Cowen's Rep. 292. © 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; Holt v. Alloway, 2 Blackf. Ind. Rep. 108, and Hoxie v. Wright, 2 Vermont Rep. 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, and be subject to the jurisdiction of the court, or if a foreigner or non-resident, he must have actually appeared to the suit, or the judgment of another state will not be deemed any validity. (3) This is a plain principle of justice, which pervades the jurisprudence of this and of all other countries. Killburn v. Woodworth, 5 Johns. Rep. 37. Aldrich v. state. It seems there is no privity between the two administrators, and the judgment cannot be regarded as one in rem against the estate as a corporate unity. Stacy v. Thrasher, 6 How. R. 44. 60. (1) It has been decided that a judgment rendered by a justice of the peace in another state does not come within the constitutional provision referred to in the text, or within the act of 1790. Snyder v. Wise, 10 Barr's R. 157. (2) In an action upon a bond conditioned for the payment of a debt by instalments, the plaintiff recovered judgment in New-Hampshire for the penalty, and execution was issued for the first instalment then due. A suit having been brought in Vermont on the judgment, it was held that the judgment did not create an absolute indebtedness, which would sustain an action of debt in the common form, or by setting forth the judgment, the execution and the subsequent breaches. Dimmick v. Brooks, Law Reporter, July, 1850, p. 130. (8) The notice must be such as the state giving it is competent to direct. Mere knowledge of the pendency of the suit is not sufficient. State tribunals having no authority beyond the limits of the state, it seems that notice served on a person resident in another state, and while he is within such state, will not render the foreign judgment binding upon him. Ewer v. Coffin, 1 Cush. (Mass.) R. 23. |