Indians. sion of the lands they occupied, and were considered as owning them by a perpetual right of possession in the tribe or nation inhabiting them, as their common property, from generation to generation, not as the right of the individuals located on particular spots. Subject to this right of possession, the ultimate fee was in the crown, and its grantees; which could be granted by the crown or colonial legislatures, while the lands remained in possession of the Indians; though possession could not be taken without their consent. United States v. Clark, 9 Peters, 168. 5. The condition of the Indians, in relation to the United States, is perhaps unlike that of any other two people in existence. In general, nations not owing a common allegiance, are foreign to each other. The term foreign nation, is with strict propriety applicable by either to the other. But the relation of the Indians to the United States, is marked by peculiar and cardinal distinctions, which exist no where else. The Cherokee Nation v. The State of Georgia, 5 Peters, 1. 6. The Indians are acknowledged to have an unquestionable, and heretofore unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to the government. It may well be doubted, whether those tribes which reside within the acknowledged boundaries of the United States, can with strict accuracy be denominated foreign nations. They may more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title, independent of their will, which must take effect in point of possession, when their right of possession ceases; meanwhile they are in a state of pupilage. Their relations to the United States resemble that of a ward to his guardian. They look to our government for protection; rely upon its kindness and its power; appeal to it for re-joyment in their own way, and for their own lief to their wants; and address the President as their great father. lbid. 7. The treaties and laws of the United States, contemplate the Indian territory as completely separated from that of the states; and provide that all intercourse with them shall be carried on exclusively by the government of the Union. Worcester v. The State of Georgia, 6 Peters, 515. 8. The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial; with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate, than the first discoverer of the coast of the particular region claimed: and this was a restriction which those European potentates imposed on themselves, as well as on the Indians. The very term "nation," so generally applied to them, means "a people distinct from others." The constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and, consequently, admits their rank among those powers who are capable of making treaties. The words "treaty" and "nation" are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves; having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to other nations of the earth. They are applied to all in the same sense. Ibid. 9. One uniform rule seems to have prevailed in the British provinces in America, by which Indian lands were held and sold, from their first settlement, as appears by their laws; that friendly Indians were protected in the posses 10. Individuals could not purchase Indian lands without permission or license from the crown, colonial governors, or according to the rules prescribed by colonial laws; but such purchases were valid with such license, or in conformity with the local laws: and by this union of the perpetual right of occupancy with the ultimate fee, which passed from the crown by the license, the title of the purchaser became complete. Ibid. 11. Indian possession or occupation was considered with reference to their habits and modes of life; their hunting grounds were as much in their actual possession, as the cleared fields of the whites; and their rights to its exclusive en purposes, were as much respected, until they abandoned them, made a cession to the government, or an authorized sale to individuals. In either case their rights became extinct, the lands could not be granted disencumbered of the right of occupancy, or enjoyed in full dominion by the purchasers from the Indians. Such was the tenure of Indian lands by the laws of Massachusetts, Connecticut, Rhode Island, New Hampshire, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia. Ibid. 12. Grants made by the Indians at public councils, since the treaty at Fort Stanwick's, have been made directly to the purchasers, or to the state in which the land lies, in trust for them, or with directions to convey to them; of which there are many instances of large tracts so sold and held; especially in New York. Ibid. 13. It was an universal rule, that purchases made at Indian treaties, in the presence, and with the approbation of the officer under whose direction they were held by the authority of the crown, gave a valid title to the lands; it prevailed under the laws of the states after the revolution, and yet continues in those where the right to the ultimate fee is owned by the states, or their grantees. It has been adopted by the United States, and purchases made at treaties held by their authority, have been always held good by the ratification of the treaty, without any patent to the purchasers from the United States. This rule in the colonies was founded on a settled rule of the law of England, that by his prerogative, the king was the universal cccupant of all vacant lands in bis dominions, and had the right to grant them at his pleasure, or by his authorized officers. Ibid. 14. When the United States acquired and took possession of the Floridas, the treaties which ha' General Principles. sented to the governor for confirmation. The sales by the Indians transferred the kind of right which they possessed; the ratification of the sale by the governor, must be regarded as a relinquishment of the title of the crown to the purchaser; and no instance is known where permission to sell has been "refused, or the rejection of an Indian sale." Ibid. been made with the Indian tribes, before the ac- | Indians sold their lands, to have the deeds prequisition of the territory by Spain and Great Britain, remained in force over all the ceded territory, as the laws which regulated the relations with all the Indians who were parties to them, and were binding on the United States, by the obligation they had assumed by the Louisiana treaty, as a supreme law of the land, which was inviolable by the power of congress. They were also binding as the fundamental law of Indian rights; acknowledged by royal orders, and municipal regulations of the province, as the laws and ordinances of Spain in the ceded provinces, which were declared to continue in force by the proclamation of the governor in taking possession of the provinces; and by the acts of congress, which assured all the inhabitants of protection in their property. It would be an unwarranted construction of these treaties, laws, ordinances and municipal regulations, to decide that the Indians were not to be maintained in the enjoyment of all the rights which they could have enjoyed under either, had the provinces remained under the dominion of Spain. It would be rather a perversion of their spirit, meaning and terms, contrary to the injunction of the law under which the court acts, which makes the stipulations of any treaty the laws and ordinances of Spain, and these acts of congress, so far as either apply to this case, the standard rules for its decision. Ibid. 15. The treaties with Spain and England, before the acquisition of Florida by the United States, which guarantied to the Seminole Indians their lands according to the right of property with which they possessed them, were adopted by the United States; who thus became the protectors of all the rights they had previously enjoyed, or could of right enjoy under Great Britain or Spain, as individuals or nations, by any treaty, to which the United States thus became parties in 1803. Ibid. 18. The colonial charters, a great portion of the individual grants by the proprietary and royal governments, and a still greater portion by the states of the Union after the revolution, were made for lands within the Indian hunting grounds. North Carolina and Virginia to a great extent paid their officers and soldiers of the revolutionary war by such grants, and extinguished the arrears due the army by similar means. It was one of the great resources which sustained the war, not only by those states, but by other states. The ultimate fee, encumbered with the right of Indian occupancy, was in the crown previous t the revolution, and in the states of the Unio afterwards, and subject to grant. This right cỉ occupancy was protected by the political powe and respected by the courts, until extinguished when the patentee took the unencumbered fee. So the supreme court and the state courts have uniformly held. Clark v. Smith, 13 Peters, 195. authorized by the law. United States v. Simms, 1 Cranch, 252; 1 Cond. Rep. 305. 2. Objections to the form and sufficiency of the indictment may, in the discretion of the court, be discussed and decided during the trial, before the jury; but generally speaking, they ought regularly to be considered only upon a motion to quash the indictment, or in arrest of judgment, or in demurrer. United States v. Gooding, 12 Wheat. 460; 6 Cond. Rep. 572. 1. Where, by the law of Virginia, a penalty 16. The Indian right to the lands as property, was imposed for keeping a gaming table, and was not merely of possession, that of alienation the penalty was given to any person who should was concomitant; both were equally secured, sue for it, an indictment in the name of the protected and guarantied by Great Britain and United States for the offence cannot be sustain Spain, subject only to ratification and confirma-ed; but the penalty must be sued for in the form tion by the license, charter or deed from the governor representing the king. Such purchases enabled the Indians to pay their debts, compensate for their depredations on the traders resident among them to provide for their wants; while they were available to the purchasers as payment of the considerations which at their expense had been received by the Indians. It would have been a violation of the faith of the government to both, to encourage traders to settle in the province, to put themselves and property in the power of the Indians, to suffer the latter to contract debts, and when willing to pay them by the only means in their power, a cession of their lands, withhold an assent to the purchase, which by their laws or municipal regulations, was necessary to vest a title. Such a course was never adopted by Great Britain, in any of her colonies, nor by Spain in Louisiana or Florida. Ibid. 17. The laws made it necessary, when the 3. In criminal proceedings the onus probandi rests upon the prosecutor, unless a different provision is expressly made by statute. Ibid. 4. The act of congress of 27th June, 1798, to punish frauds committed on the Bank of the United States, is in itself repugnant, and will not support an indictment for knowingly uttering as true, a false, forged and counterfeit paper, purporting to be a bill of the Bank of the United States, signed by the president. United States v. Cantril, 4 Cranch, 167; 2 Cond. Rep. 69. General Principles. 5. When two or more persons are jointly to all public ministers. United States v. Benners, charged in the same indictment with a capital Baldwin's C. C. R. 242. offence, they have not a right by law to be tried separately, without the consent of the prosecutor, but such separate trial may be allowed, or not, in the discretion of the court. United States v. Marchant et al., 12 Wheat. 480; 6 Cond. Rep. 588. 6. It is not, in general, necessary, in an indictment for a statutable offence, to follow the exact wording of a statute; it is sufficient if the offence be set forth with substantial accuracy and certainty to a reasonable intendment. United States v. Bachelder, 2 Gallis. C. C. R. 15. 7. Where, however, the words used in the statute are the technical words which constitute | the specific offence, then the law allows of no substitute in the indictment, because no other words are exactly descriptive of the offence. Ibid. 8. The office of an inspector of the customs ceases with that of the collector who appointed him; and an indictment for resisting such inspector, after the resignation of the collector, and before his being reappointed by the succeeding collector, cannot be sustained. United States v. Wood, 2 Gallis. C. C. R. 361. 9. The grand jury, having received testimony from a person not under oath, the indictment founded upon such evidence, was quashed as irregularly found. United States v. Coolidge, 2 Gallis. C. C. R. 364. 10. On a motion to quash an indictment, the evidence of the facts on which the application rests, must be in writing, that it may constitute part of the record. Ibid. 11. If an indictment founded on a statute, conclude "contrary to the true intent and meaning of the act of congress in such case made and provided," it is good and equivalent to a conclusion "against the form of the statute in such case made and provided." United States v. La Coste, 2 Mason's C. C. R. 129. 12. If several are charged in the same indictment, each has a right to a separate trial. United States v. Sharp et al., Peters' C. C. R. 118. 13. An indictment which charges in the same count an offence made capital by one section of an act of congress, and another offence declared in another section of the same law to be a misdemeanor, is bad. Ibid. 14. Driving a carriage through a populous crowded street of a city, at such a rate as to endanger the safety of the inhabitants, is an indictable offence at common law. United States v. Hart, Peters' C. C. R. 390. 17. Under the act of congress of 6th July, 1812, prohibiting American vessels trading with the enemies of the United States, living fat oxen are articles of provisions and munitions of war, within the act. United States v. Sheldon, 2 Wheat. 119; 4 Cond. Rep. 62. 18. Under the statute of 1790, ch. 9, sect. 28, which requires that in capital cases a copy of the indictment, and a list of the witnesses, &c. shall be delivered to the prisoners two entire days before the trial, the word "trial" means the trial of the cause by the jury, and not the arrangement and pleading preparatory to the trial. United States v. Curtis, 4 Mason's C. C. R. 232. 19. Where two or more persons are jointly indicted for a capital offence, as for murder, they are not, as matter of right, entitled to a separate trial, if they request it, but it is matter of discretion to be judged of under all the circumstances of the case. United States v. Marchant, 4 Mason's C. C. R. 158. 20. On an indictment for maliciously and without justifiable cause, forcing a seaman on shore in a foreign port, it was held, under the crimes act of 1825, ch. 270, sect. 10, that "maliciously" in the statute means wilfully, against a knowledge of duty. "Justifiable cause," does not mean such a cause, as in the mere maritime law might authorize a discharge, but such a cause, as in the known policy of the American laws on this subject, is contemplated as a case of moral necessity, for the safety of the ship and crew, or the due performance of the voyage. United States v. Coffin, 1 Sumner's C. C. R. 194. 21. In an indictment in the crimes act of 1790, ch. 36, sect. 12, for an endeavour to commit a revolt, and confining the master of the ship on the high seas, it is not necessary to allege that the master was at the time in the peace of the United States, or that he was an American citizen. United States v. Thompsun, 1 Sumner's C. C. R. 168. 22. A party will not be allowed to give oral evidence of the intent or purpose of an indictment, verdict, or judgment, as the best evidence is the original, or a certified copy. Gass v. Stinson, 2 Sumner's C. C. R. 605. 23. It is no defence to an indictment for forcibly obstructing or impeding an officer of the customs in the discharge of his duties, that the object of the party was personal chastisement, and not to obstruct or impede the officer in the 15. In an indictment for forgery, it is, in gene-discharge of his duties, if the defendant knew ral, necessary to set forth the tenor of the instru- the officer to be so engaged. United States v. ment, and it must be proved as laid. United Keene, 5 Mason's C. C. R. 458. States v. Britton, 2 Mason's C. C. R. 462. 16. An indictment under the twenty-seventh section of the act of 1790, need not state the offence to be committed by an officer; it is sufficient to state that the person on whom it was committed was a public minister, without stating that he had been authorized and received as such by the president. This section applies 24. The defendant was indicted for receiving treasury notes of the United States, stolen from the United States mail. The indictment, in one of the counts, described one of the treasury notes as bearing interest annually of one per centum. A treasury note was offered in evidence, bearing interest at one m. per centum, and parol evidence was offered to show that treasury no tes, Forms of Indictments, and Proceedings on them. fifths of a ton, whereas the paper produced stated it to be fourteen tons and fifty ninety-fifths of a ton, the variance was held fatal. United States v. Lakeman, 2 Mason's C. C. R. 229. such as the one offered in evidence, was received | burthen of fourteen tons and forty-five ninetyby the officers of the government as bearing interest of one mill per centum per annum, not one per centum per annum. The court held, that treasury notes issued by the authority of the act of congress, passed on the 12th of October, 1828, are promissory notes within the meaning of the act of congress of 3d March, 1825. The United States v. Hardyman, 13 Peters, 176. 25. When a note is given payable in foreign coin, the value of each coin must be averred; and under such averment, evidence of the value may be received. Ibid. 26. An indictment for stealing a horse from one of the Wyandott tribe of Indians in Ohio, not sustained, on the ground that, surrounded as that tribe is by a white population, effect cannot be given to the laws originally designed for their protection, with other tribes. United States v. Cisna, 1 M'Lean's C. C. R. 264. 27. An instrument may be set out in an indictment, according to its legal effect. United States v. Keen, 1 M'Lean's C. C. R. 429. 28. But, if words are used as descriptive of the instrument, though they might have been omitted, yet being stated, must be proved. Ibid. 29. A draft signed Jos. Johnson, was not held admissible under a count, stating it to be signed Joseph Johnson, president. Ibid. 30. The court judicially know that the offence charged in the different counts is the same, varied so as to meet the proof. Ibid. 31. And a conviction on any one of the counts, will be a bar to any future prosecution for the same offence. Ibid. 32. Under the twenty-first section of the postoffice law, no one can be convicted who is not employed in the post-office department. The United States v. Nott, 1 M'Lean's C. C. R. 499. 33. To constitute the offence, it is not necessary that the letter stolen should have been taken out of the post-office building. Ibid. 34. Taking a letter which contains bank notes, greatly aggravates the offence. Ibid. 35. A prosecuting attorney, with leave of the court, may enter a nolle prosequi on an indictment. United States v. Shoemaker, 2 M'Lean's C. C. R. 114. 36. But after the jury are sworn and witnesses, the attorney has no right to enter a nolle prosequi. Ibid. 37. Such an abandonment is equivalent to an acquittal. Ibid. 38. The court will not compel the prosecuting attorney to elect on which count in the indictment he will try the defendant. Counts are so varied as to meet the evidence. United States v. Dickinson, 2 M'Lean's C. C. R. 325. 39. The court will always regard the rights of the defendant. Ibid. 2. Forms of Indictments, and Proceedings on them. 40. In an indictment on the seventh and ninth sections of the act of July 29th, 1813, ch. 563, for granting a bounty to certain vessels employed in the fisheries, for making a false declaration, the indictment having stated the purport of the written paper to be that the vessel was of the 41. In an indictment for forgery, it is, in general, necessary to set forth the tenor of the instrument, and it must be proved as it is set forth. United States v. Britton, 2 Mason's C. C. R. 464. 42. It seems, that if the instrument be de stroyed or suppressed by the prisoner, that fact being stated in the indictment will be a sufficient excuse for not setting forth the tenor. Ibid. 43. If a statute offence is alleged in the indictment according to the words of the statute, the indictment will not be vitious, because, in the conclusion, a name is given to the crime which is technically wrong. United States v. Elliot, 3 Mason's C. C. R. 156. 44. Thus, if the offence be false swearing, under the pension act of May 1st, 1820, ch. 569, the indictment is not vitiated because it concludes with "and so the jurors, &c." that the party "did commit wilful and corrupt perjury," although the offence be not technically perjury. Ibid. 45. If, in an indictment for an endeavour to commit a revolt, under the twelfth section of the act of April 30th, 1790, ch. 36, it is averred to have been done on the high seas, such averment will be sustained by proof of the offence in a foreign port. United States v. Keefe, 3 Mason's C. C. R. 475. 46. An indictment for perjury must state, distinctly and precisely, the time when the false oath was taken. United States v. Bowman, 2 Wash. C. C. R. 328. 47. Thus, where the indictment stated that, at a circuit court held for the district of Pennsylvania, on the 8th of October, 1808, an indictment was found against I. H., &c. and the said I. H. being in due form arraigned upon the said indictment, pleaded not guilty, and issue being joined, the said I. H. was put upon his trial, and was tried at said court by a jury for said misdemeanor, (without saying when,) and at said trial, so then and there had, the defendant was sworn as a witness, &c., the judgment was arrested. Ibid. 48. Where an indictment sets forth a fact which is not impertinent or foreign to the cause, it must be proved, although the indictment might have been good, without such averment. United States v. Porter, 3 Day, 283. 49. On an indictment for resisting an inspector of the customs in the execution of the duties of his office, a warrant from the surveyor appointing him to the office, is not sufficient evidence of his appointment to support an indictment, the collector being the only person authorized by v. Phelps, 4 Day, 469. law to make such appointment. United States 50. A surveyor may lawfully appoint assistants, and it is penal to resist them in the execu tion of their office; but the indictment must describe such officers in their real capacity and character. Ibid. 51. In an indictment for a piratical murder, Forms of Indictments, and Proceedings on them. 52. Each count in an indictment is a distinct substantive charge; and if the verdict conform to any one of the counts, which in itself will support the verdict, it is sufficient. Ibid. 33 under the eighth section of the act of April 30, | not been at any time president of the bank of 1790, ch. 36, it is not necessary to allege the the United States, but who, at the time of the prisoner to be a citizen of the United States, nor date of the counterfeit, was the president of the that the crime was committed on board a vessel office of discount at Fayetteville; and was belonging to citizens of the United States, but countersigned by the name of John W. Sand it is sufficient to charge it as committed from on ford, who at no time was cashier of the mother board such a vessel, by a mariner sailing on bank, but was at the said date cashier of the board such a vessel. United States v. Furlong said office of discount and deposit. Held, tha et al. 5 Wheat. 184; 4 Cond. Rep. 623. law. United States v. Turner, 7 Peters, 132. this was an offence within the provisions of the case. 61. The policy of the act extends to such a The object is to guard the public from face to be issued by the bank. It could not b false and counterfeit paper, purporting on its presumed that persons in general could be cog nizant of the fact who, at particular periods were the president and cashier of the bank. They were officers liable to be removed at the pleasure of the directors, and the times of their appointment or removal, or even their names, could not ordinarily be within the knowledge of would be equally great whether the names were the body of the citizens. The public mischief those of the genuine officers, or of fictitious or unauthorized persons; and ordinary diligence would not protect them against imposition. 53. An inspector is an officer of the customs, the obstruction of whom is within the seventyfirst section of the collection act of March 2d, 1799, ch. 128. An inspector had a right to go on board any vessel to discover if any goods, &c., were illegally laden on board, contrary to the embargo acts; and if obstructed in so doing, an indictment lay under the section. United States v. Sears, 1 Gallis. C. C. R. 215. 54. If an indictment charge a perjury to have been committed at the circuit court held on the 19th day of May, and the record show the court to have been held on the 20th day of May, the variance is fatal. United States v. M'Neal, 1 Gal-Ibid. lis. C. C. R. 387. 55. An indictment must bring the case within the act of congress, passed on the 15th day of 62. Indictment on the eighteenth section of the terms of the statute; and no argumentative | April, 1816, entitled "an act to incorporate the inferences will supply the want of direct aver-subscribers to the bank of the United States." ments of material facts. United States v. Clark, The indictment charged the defendant with ut1 Gallis. C. C. R. 497. 56. It is not necessary, in an indictment for the obstruction of public officers, to set forth the particular exercise of the office in which they were engaged at the time, or the particular act and circumstances of obstruction; these are properly matters of evidence. Ibid. 57. If an officer of the customs seize without probable cause, no indictment will lie under the seventy-first section of the statute of March 2, 1799, ch. 128, for resisting him in the seizure. United States v. Gay, 2 Gallis. C. C. R. 359. 58. On an indictment under the nineteenth section of the act of March 16, 1802, ch. 269, for purchasing of a soldier "his arms," it must be proved that the soldier was in the lawful possession of the arms, or had a special bailment of them, otherwise the indictment cannot be sustained; if the arms were stolen, the case is not within the act. United States v. Mason's C. C. R. 151. Brown, 1 of a bill issued by the president," &c. of the tering and forging "a counterfeit bill in imitation bank. The forged paper was in these words and figures: "Cashier of the Bank of the United States, Pay to C. W. Ernest, or order, five dollars. Office of Discount and Deposit in Pittsridge, Pres. J. Correy, Cash." Indorsed "Pay burgh, the 10th day of Dec. 1829. A. Brackenthe bearer, C. W. Ernest." Held, that a genuine instrument, of which the forged and counterfeited instrument is an imitation, is not a bill bank of the United States, according to the true issued by order of the president, &c. of the intent and meaning of the eighteenth section of the act incorporating the bank. United States v. Brewster, 7 Peters, 164. twenty-fourth section of the act of congress of 63. The defendant was indicted upon the 3d March, 1825, entitled "an act to reduce into one, the several acts establishing and regulating 59. On an indictment for an endeavour to curing and assisting one Joseph I. Straughan, a the post-office department," for advising, promake a revolt in a ship, founded on the twelfth mail carrier, to rob the mail, and was found section of the act of April 30, 1790, ch. 36, it is guilty. Upon this finding, the judges of the not necessary to prove that it was committed on circuit court of North Carolina were divided in the high seas. United States v. Hamilton, 1 Ma-opinion on the question, whether an indictment son's C. C. R. 443. 60. Indictment in the circuit court of North carrier to rob the mail, ought to set forth or aver founded on the statute for advising, &c. a mail Carolina for the forgery of, and an attempt to that the said carrier did in fact commit the pass, &c., a certain paper writing in imitation offence of robbing the mail. By the Courtof, and purporting to be a bill or note issued by The answer to this, as an abstract proposition, the president, directors and company of the must be in the affirmative. But if the question bank of the United States, founded on the eigh-intended to be put is, whether there must be a teenth section of the act of 1816, establishing the bank of the United States. The note was signed with the name of John Huske, who had distinct substantive averment of that fact, it is |