164 NOTES ON THE NORTHWEST. 



lative or judicial, they are treated as the property of the 

 government ; — as if the government held them in fee simple. 



Such an idea of an estate in fee in the government cannot, 

 however, be sustained upon any recognized principles of politi- 

 cal law in this country. In England, it is true, the doctrine for- 

 merly obtained that the property of all the lands in the realm was 

 vested in the crown, and that the king might dispose of them 

 as pleased him, without restriction. Under our government 

 an original tenure in fee of the lands within the national do- 

 main, has never been acknowledged as an incident of sove- 

 reignty, or as in any way an attribute or prerogative of the 

 government. The government with us is considered to have 

 neither power, domain, prerogative, property, nor revenue, but 

 as trustees for the States, and expressly given by the con- 

 stitution. 



Such dominion as the government have over the public 

 lands is not original, but acquired — it gives them not an estate 

 in fee, but an interest in nature of a right of possession with 

 a lien or mortgage, for the payment of the expenses of ex- 

 tinguishing the Indian title, of surveying and of bringing into 

 market ; and that interest not in the nature of a usufruct, but 

 fiduciary. 



The Indian nations who formerly inhabited or roamed over 

 these lands knew nothing of separate property, nothing of 

 estates in fee, or less — they recognized no tenure, or investi- 

 ture of title. Their claim was to a right of hunting. By 

 their treaties they give up that to the government of the United 

 States. And it is all they have to give. They cannot convey 

 more. They cannot convey what they do not possess. They 

 do not convey any absolute title, but relinquish their claim, 

 which is a right of possession merely. No person, or body 

 politic, or community, can convey to another what such 

 person or body has not in itself : nor can any grantee acquire 



