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.contained in these clauses must be taken in connection with the entire scheme of the agreement as framed, including those parts not finally adopted, as throwing light on the meaning of the remainder; and looking at the purpose, so clearly disclosed in that, of the removal of the whole body of the Sioux nation to the Indian territory proper, which was not consented to, it is manifest that the provisions had reference to their establishment as a people upon a defined reservation as a permanent home, who were to be urged, as far as it could successfully be done, into the practice of agriculture, and whose children were to be taught the arts and industry of civilized life, and that it was no part of the design to treat the individuals as separately responsible and amenable, in all their personal and domestic relations with each other, to the general laws of the United States, outside of those which were enacted expressly with reference to them as members of an Indian tribe.
It must be remembered that the question before us is whether the express letter of section 2146 of the Revised Statutes, which excludes from the jurisdiction of the United States the case of a crime committed in the Indian country by one Indian against the person or property of another Indian, has been repealed. If not, it is in force and applies to the present case. The treaty of 1868 and the agreement and act of congress of 1877, it is admitted, do not repeal it by any express words. What we have said is sufficient at leasi to show that they do not work a repeal by necessary implication. A meaning can be given to the legislation in question, which the words will bear, which is not unreasonable, which is not inconsistent with its scope and apparent purposes, whereby the whole may be made to stand. Implied repeals are not favored. The implication must be necessary. There must be a positive repugnancy between the provisions of the new laws and those of the old. WVood y. U. S. 16 Pet. 342; Daviess v. Fairbairn, 3 How. 636; U.S. v. Tynen, 11 Wall. 88; State v. Stoll, 17 Wall. 425.
The language of the exception is special and express; the words relied on as a repeal are general and inconclusive. The rule is, generalia specialibus non derogant. “The general principle to be applied," said BOVILL, C. J., in Thorpe v. Adams, L. R. 6 C. P. 135, "to the construction of acts of parliament is that a general act is not to be construed to repeal a previous particular act, unless there is some express reference to the previous legislation on the subject, or unless there is a necessary inconsistency in the two acts standing together.” "And the reason is," said Wood, V. C., in Fitzgerald v. Champneys, 30 Law J. Ch. 782; 2 Johns. & H. 31-54, "that the legislature having had its attention directed to a special* subject, and having observed all the circumstances of the case and provided for them, does not intend, by a general enactment afterwards, to derogate from its own act when it makes no special mention of its intention so to do.”
The nature and circumstances of this case strongly reinforce this rule of interpretation in its present application. It is a case involving the judgment of a court of special and limited jurisdiction, not to be assumed without clear warrant of law. It is a case of life and death. It is a case where, against an express exception in the law itself, that law, by argument and inference only, is sought to be extended over aliens and strangers; over the members of a community, separated by race, by tradition, by the instincts of a free though sav. age life, from the authority and power which seeks to impose upon them the restraints of an external and unknown code, and to subject them to the responsibilities of civil conduct, according to rules and penalties of which they could have no previous warning; which judges them by a standard made by others, and not for them, which takes no account of the conditions which should except them from its exactions, and makes no allowance for their inability to understand it. It tries them not by their peers, nor by the customs of their peo. ple, nor the law of their land, but by superiors of a different race, according to the law of a social state of which they have an imperfect conception, and which is opposed to the traditions of their history, to the habits of their lives, to the strongest prejudices of their savage nature; one which measures the red man's revenge by the maxims of the white man's morality. It is a case, too, of first impression, so far as we are advised; for, if the question has been mooted heretofore in any courts of the United States, the jurisdiction has never before been practically asserted as in the present instance. The provisions now contained in sections 2145 and 2146 of the Revised Statutes were first enacted in section 25 of the Indian intercourse act of 1834. 4 St. 733. Prior to that, by the act of 1796, (1 St. 469,) and the act of 1802, (2 St. 139,) offenses committed by Indians against white persons, and by white persons against Indians, were specifically enumerated and defined, and those by Indians against each other were left to be dealt with by each tribe for itself, according to its local customs, The policy of the government in that respect has been uniform. As was said by Mr. Justice MILLER, delivering the opinion of the court in U. S. v. Joseph, 94 U. S. 614, 617:
“The tribes for whom the act of 1854 was made were those semi-inde pendent tribes whom our government has always recognized as exempt from our laws, whether within or without the limits of an organized state or territory, and, in regard to their domestic government, left to their own rules and traditions, in whom we have recognized the capacity to make treaties, and with whom the governments, state and national, deal, with a few exceptions only, in their national or tribal character, and not as individuals."
To give to the clauses in the treaty of 1868 and the agreement of 1877 effect, so as to uphold the jurisdiction exercised in this case, would be to reverse in this instance the general policy of the government towards the Indians, as declared in many statutes and treaties, and recognized in many decisions of this court, from the beginning to the present time. To justify such a departure, in such a case, requires a clear expression of the intention of congress, and that we have not been able to find. It results that the first district court of Dakota was without jurisdiction to find or try the indictment against the prisoner; that the conviction and sentence are void, and that his imprisonment is illegal.
The writs of habeas corpus and certiorari prayed for will accordingly be issued.
(109 U. S. 608)
ROBERTSON and others v. PICKRELL and others.
(December 17, 1883.)
WILI-EXECUTION-LEX SITUS-PROBATE-EVIDENCE-ESTOPPEL-GRANTOR AND
In order to pass title to real property a will must be executed in conformity with
the laws of the state where the property lies. Probate of a will, though it may be conclusive evidence of the validity of the in
strument within the state, is no proof of its execution in conformity with the
laws of another state. The grantee by deed poll of a life estate is not estopped from denying the title of
his grantor and acquiring a superior one.
In Error to the Supreme Court of the District of Columbia.
FIELD, J. This was an action of ejectment for a parcel of land in the city of Washington, District of Columbia. On the trial the plaintiffs gave in evidence a conveyance of the premises from the United States to one Robert Moore, executed in June, 1800; and then endeavored to trace title from the grantee through a devise in his last will and testament, bearing date in July, 1803. For this purpose they produced and offered a transcript of proceedings in the hustings court of Petersburg, in the state of Virginia, containing a copy of the will, and of its probate in that court in December, 1804. By the law of Virginia then in force that court was authorized to take the probate of wills, as well of real as of personal estate; and when a will was exbibited to be proved, it could proceed immediately to receive proofs, and to grant a certificate of its probate. Within seven years afterwards its validity was open to contestation in chancery by any person interested; but, if not contested within that period, the probate was to be deemed conclusive, except as to parties laboring at the time under certain disabilities, who were to have a like period to contest. its validity after the removal of their disabilities. The transcript was offered, not merely as an exemplified copy of the record of the last will and testament of Robert Moore, and of its probate in the hustings court, but also as conclusive proof of the validity of the will, and of all matters involved in its probate. Upon objection of the defendants' counsel, it was excluded, and an exception was taken to the exclusion. This ruling of the court constitutes the principal error assigned for a reversal of the judgment. We think the ruling was correct. Looking at the transcript presented, we find that it shows only that a paper purporting to be the last will and testament of the deceased was admitted to record upon proof that the instrument and the signature to it were in his handwriting. No witnesses to its execution were called, no proof was offered of the genuineness of the signatures of the parties whose names are attached to it as witnesses, and no notice was given to parties interested of the proceedings in the hustings court. As a record it furnishes no proof of an instrument executed as a last will and testament in a form to pass real estate in the District of Columbia. The execution of such a will 'must be attested by at least three*witnesses. It matters not how effective the nitrument may be to pass real property in Virginia, it must be executed in the manner prescribed by the law in force in the district to pass real property situated there, and its validity must be established in the manner required by that law. It is familiar doctrine that the law of the place governs as to the formalities necessary to the transfer of real property, whether testamentary or inter vivos. In most of the states of the Union a will of real property must be admitted to probate in some one of their courts before it can be received elsewhere as a conveyance of such property. But by the law of Maryland, which governs in the District of Columbia, wills, so far as real property is concerned, are not admitted to such probate. The common-law rule prevails on that subject. The orphans' court there may, it is true, take the probate of wills, though they affect lands, provided they affect chattels also; but the probate is evidence of the validity of the will only so far as the personal property is concerned.
As an instrument conveying real property the probate is not evidence of its execution. That must be shown by a production of the instrument itself, and proof by the subscribing witnesses; or, if they be not living, by proof of their handwriting.
So it matters not that the same effect is to be given in the courts of this district to the record of the hustings court, which, by the law of Virginia, can be given to it thero; that is, that it is to be received as sufficient to pass the title to real property situated in that state.
The question still remains, is the instrument sufficient to pass title to real property in the District of Columbia ? If so, it should have been produced and proved in the manner mentioned. If, as stated by counsel, it is on file in the hustings court, and by the law of Virginia cannot be removed, then it should have been proved under a commission, as other instruments out of the state are prored, when it is impossible to compel their production in court.
The act of congress declaring the effect to be given in any court within the United States to the records and judicial proceedings of
the several states, does not require that they shall have any greater: force and efficacy in other courts than in the courts of the states from which they are taken, but only such faith and credit as by law or usage they have there. Any other rule would be repugnant to all principle, and, as we said on a former occasion, would contravene the policy of the provisions of the constitution and laws of the United States on that subject. Board of Public Works v. Columbia College, 17 Wall. 529.
It does not appear that the validity of the will of Moore, as probated in 1804 in the hustings court of Petersburg, was ever afterwards contested in a court of chancery in Virginia. Its probate must therefore be deemed conclusive, so far as that state is concerned, and the will held sufficient to pass all property which can be there transferred by a valid instrument of that kind. But no greater effect can be given out of Virginia to the proceedings in the hustings court. The probate establishes nothing beyond the validity of the will there. It does not take the place of provisions necessary to its validity as a will of real property in other states, if they are wanting. Its validity as such will, in other states, depends on its execution in conformity with their laws; and if probate there be also required, such probate must be had before it can be received as evidence.
Authority for these views is found in the cases of McCormick v. Sullivant and of Darby v. Mayer, both reported in 10 Wheat. 192, 465. In the first of them it appeared that by the law of Ohio, before a will devising real property can be considered as valid, it must be presented to the court of common pleas of the county where the land lies for probate, and be proved by at least two of the subscribing witnesses, unless it has been proved and recorded in another state according to its laws; in which case an authenticated copy can be offered for probate without proof by the witnesses. A will devising real property in that state was admitted to probate in the state of Pennsylvania, and this court held that such probate gave no validity to the will in respect to the real property in Ohio, as to which the deceased was to be considered as having died intestate. 10 Wheat. 202, 203. In the seconds case, which was an action of ejectment for land in Tennessee, the defendant endeavored to trace title to the premises through the will of one Kitts. For that purpose a copy and probate of the will devising the property were produced in evidence, certified from the orphans' court of Baltimore county, Maryland, and admitted against the objection of the plaintiff. This court held the record inadmissible, and in its opinon explained the common law doctrine as to what was legal evidence in an action of ejectment to establish a devise of real property. It stated that the ordinary's probate was no evidence of the execution of the will in ejectment; that where the will itself was in existence and could be produced, it was necessary to produce it; and that when the will was lost or could not be produced, secondary evi. dence was necessarily resorted to; but that, whatever the proof, it was