the Middle Age, and especially in the time of the Crusades, they were considered as pirates:

"Bugia ed Algieri, infami nidi di corsari,"

as Tasso calls them. But they have long since acquired the character of lawful powers, possessing all those attributes which distinguish a lawful State from a mere association of robbers. (b) "The Algerines, Tripolitans, Tunisians, and those of Salee," says Bynkershoek, "are not pirates, but regular organized societies, who have a fixed territory and an established government, with whom we are alternately at peace and at war, as with other nations, and who, therefore, are entitled to the same rights as other independent States. The European sovereigns often enter into treaties with them, and the States-General have done it in several instances. Cicero defines a regular enemy to be: Qui haberet rempublicam, curiam, ærarium, consensum et concordiam civium rationem aliquam, si res ita tulisset, pacis et fœderis. (Philip, p. iv. c. 14.) All these things are to be found among the barbarians of Africa; for they pay the same regard to treaties of peace and alliance that other nations do, who generally attend more to their convenience than to their engagements. And if they should not observe the faith of treaties with the most scrupulous respect, it cannot be well required of them; for it would be required in vain of other sovereigns. Nay, if they should even act with more injustice than other nations do, they should not, on that account, as Huberus very properly observes, (De Jure Civitat. 1. iii. sect. 4, c. 5, n. ult.) lose the rights and privileges of sovereign States." (c)

§ 38. The political relation of the Indian nations on this continent towards the United States, is that of semi-sovereign States, under the exclusive protectorate of another power. Some of these savage tribes have totally extinguished their national fire, and submitted themselves to the laws of the States within whose territorial limits they reside; others have acknowledged, by treaty, that they hold their national existence at the will of the State; others retain a limited sovereignty, and the absolute proprietorship of the soil. The latter is the case with the tribes to the west of Georgia. (a)

(b) Sir L. Jenkins's Works, ii. 791. Robinson's Adm. Rep. iv. 5, The Helena. (c) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. xvii.

(a) Cranch's Rep. vi. 146, Fletcher v. Peck.

Thus the Supreme Court of the United States determined, in 1831, that, though the Cherokee nation of Indians, dwelling within the jurisdictional limits of Georgia, was not a "foreign State" in the sense in which that term is used in the Constitution, nor entitled, as such, to proceed in that Court against the State of Georgia, yet the Cherokees constituted a State, or a distinct political society, capable of managing its own affairs and governing itself, and that they had uniformly been treated as such since the first settlement of the country. The numerous treaties made with them by the United States recognize them as a people capable of maintaining the relations of peace and war, and responsible in their political capacity. Their relation to the United States was nevertheless peculiar. They were a domestic dependent nation; their relation to us resembled that of a ward to his guardian; and they had an unquestionable right to the lands they occupied, until that right should be extinguished by a voluntary cession to our government. (b)

The same decision was repeated by the Supreme Court, in another case, in 1832. In this case, the Court declared that the British crown had never attempted, previous to the Revolution, to interfere with the national affairs of the Indians, further than to keep out the agents of foreign powers, who might seduce them into foreign alliances. The British Government purchased the alliance and dependence of the Indian nations by subsidies, and purchased their lands, when they were willing to sell, at the price they were willing to take, but it never. coerced a surrender of them. The British crown considered them as nations, competent to maintain the relations of peace and war, and of governing themselves under its protection. The United States, who succeeded to the rights of the British crown, in respect to the Indians, did the same, and no more; and the protection stipulated to be afforded to the Indians, and claimed by them, was understood by all parties as only binding the Indians to the United States as dependent allies. A weak power does not surrender its independence and right to self-government by associating with a stronger and taking its protection. This was the settled doctrine of the Law of Nations; and the Supreme Court therefore concluded and adjudged, that the Cherokee nation was a distinct community, occupying its own territory, with boundaries (b) Peters's Rep. v. 1, the Cherokee Nation v. The State of Georgia.

accurately described, within which the laws of Georgia could not rightfully have any force, and into which the citizens of that State had no right to enter but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of Congress. (c) 24

Single or united States.

§ 39. States may be either single, or may be united together under a common sovereign prince, or by a federal compact.

Personal

the same

§ 40. If this union under a common sovereign is not union under an incorporate union, that is to say, if it is only persovereign. sonal in the reigning sovereign; or even if it is real, yet if the different component parts are united with a perfect equality of rights, the sovereignty of each State remains unimpaired. (a) Thus, the kingdom of Hanover was formerly held by the king of

(c) Kent's Comment. on American Law, iii. 383.

(a) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 9, §§ 8, 9. Klaber, Droit des Gens Moderne de l'Europe, Part I. cap. 1, § 27. Heffter, Das europäische Völkerrecht, $ 20.

[24 It is important to notice the underlying fact, that the title to all the lands occupied by the Indian tribes, beyond the limits of the thirteen original States, is in the United States. The republic acquired it by the treaties of peace with Great Britain, by cessions from France and Spain, and by relinquishments made by the several States. The Indian tribes have only a right of occupancy. Their possession was held to be of so nomadic and uncivilized a character as to amount to no more than a kind of servitude or lien upon the land, chiefly for fishing, and hunting: the absolute title being in the republic. Whenever the republic has bought out an Indian tribe, and induced it to remove from a section of country, the act has always been called an "extinguishment of the Indian title" upon the lands of the United States. This title of occupancy the tribes are not permitted to convey to any other than the United States. The United States protect the Indians in their possession, and make treaties with the tribes; at the same time, the government makes laws, which have effect within the occupancy of the tribes, to punish Indians as well as white persons for crimes, and to decide questions between whites, or between Indians and whites, and provide for the education of the tribal Indians in agriculture and the arts of life, and plain school-teaching, at the public expense. A tribe is not a "foreign State," within the meaning of the Constitution, for the purpose of suing in the Federal courts. Where a tribe holds a district within a State, and is recognized by the United States as having tribal authority and jurisdiction, the State cannot make penal and criminal laws to arrest Indians, remove them, and try them for crimes in the State courts. The Indian tribes are not under State jurisdiction where they hold lands within the State, as à tribe, under treaties and laws of the republic; and their relations with the republic are sui generis, having been shaped and modified by time and events. Worcester v. Georgia, Peters, vi. 515; Mitchell v. United States, Peters, ix. 711; Lattimer v. Poteet, Peters, xiv. 4; United States v. Fernandez, Peters, x. 303; United States v. Rogers, How. iv. 467; Cherokee Nation v. Georgia, Peters, v. 1; Brightly's Digest of United States Laws, title "Indians."]-D.

the United Kingdom of Great Britain and Ireland, separately from his insular dominions. Hanover and the United Kingdom were subject to the same prince, without any dependence on each other, both kingdoms retaining their respective national rights of sovereignty. It is thus that the king of Prussia is also sovereign prince of Neufchatel, one of the Swiss Cantons; which does not, on that account, cease to maintain its relations with the Confederation, nor is it united with the Prussian monarchy.25

So, also, the kingdoms of Sweden and Norway are united under one crowned head, each kingdom retaining its separate constitution, laws, and civil administration, the external sovereignty of each being represented by the king.

union under

§ 41. The union of the different States composing the Real Austrian monarchy is a real union. The hereditary the same dominions of the House of Austria, the kingdoms of sovereign. Hungary and Bohemia, the Lombardo-Venetian kingdom, and other States, are all indissolubly united under the same sceptre, but with distinct fundamental laws, and other political institutions. It appears to be an intelligible distinction between such a union as that of the Austrian States, and all other unions which are merely personal under the same crowned head, that, in the case of a real union, though the separate sovereignty of each State may still subsist internally, in respect to its co-ordinate States, and in respect to the imperial crown, yet the sovereignty of each is merged in the general sovereignty of the empire, as to their international relations with foreign powers. The political unity of the States which compose the Austrian Empire forms what the German publicists call a community of States, (Gesammtstaat); a community which reposes on historical antecedents. It is connected with the natural progress of things, in the same way as the empire was formed, by an agglomeration of various nationalities, which defended, as long as possible, their ancient constitutions, and only yielded, finally, to the overwhelming influence of superior force.26

[The independence of Neufchatel was recognized by Prussia in 1857, and it is now simply a canton of the Swiss Confederation.] D.

[By the treaty of Zurich, of 1859, carrying out the preliminaries of Villafranca, Lombardy, with the exception of the fortresses of Mantua and Peschiera, was transferred by Austria to France, and by France to Sardinia, and is now part of the kingdom of Italy. Venetia remains under Austrian control.

The relations of Hungary with Austria have been in a state of change since the

Incorporate union.

§ 42. An incorporate union is such as that which subsists between Scotland and England, and between Great Britain and Ireland; forming out of the three kingdoms an empire, united under one crown and one legislature, although each may have distinct laws and a separate administration. The sovereignty, internal and external, of each original kingdom is completely merged in the united kingdom, thus formed by their successive unions.

rebellion of 1848. On the suppression of the rebellion, the emperor made the attempt to merge Hungary in the Austrian Empire, and assumed and exercised absolute power over it until 1860, when he issued his diploma of 20 October, 1860, and his patent of 27 February, 1861. By the diploma and patent, he proposed a plan of government in this form There should be an Imperial diet, or Reichsrath, for the entire empire, and separate diets for the component parts of the empire. The supreme legislative power was to be in the emperor; but the Reichsrath was to have a consultative vote, and its concurrence was necessary for certain exercises of authority, as the laying of taxes, the raising of troops, and the imposition of duties, - the usual guaranties of constitutional government. The ancient constitution of Hungary was to be restored, except that the Diet was to part with its jurisdiction over subjects placed in the class of imperial powers, and conceded to the emperor and the Reichsrath. Under the patent, the Hungarian Diet assembled; but Hungary refused to send deputies to the Reichsrath, so that the latter never had an existence in fact. An Austrian Diet held its sessions at Vienna, having jurisdiction only over Austria proper and some of the dependencies. The Hungarian Diet insisted on retaining to itself two powers, the laying of taxes, and the raising of troops. By a steady adherence to the exercise of these functions, and a refusal to take part in the Reichsrath on the terms of October, 1860, Hungary at length brought the emperor to suggest the possibility of further concessions; the results of the Italian war, and the fact of an empty treasury and impaired credit, and the increasing assumptions of Prussia in the affairs of the German Confederation, having forced upon him some decided change of system. On the 14th of December, 1865, the emperor opened the Hungarian Diet in person, at Pesth, and offered to be crowned King of Hungary, and to sustain their ancient constitution; submitting to them again the diploma of October, 1860, to which he admitted the possibility of some amendments. The Hungarian Diet was to be composed of Hungary and its dependencies, Croatia and Transylvania; while the other Diet was to represent Austria and Bohemia, and the German provinces of the empire. The point of difference was chiefly upon the raising of troops and taxes. Hungary was willing to concede to the Reichsrath the subjects of duties on exports and imports, foreign international relations, the declaration of war, and the making of peace; as well as the post, public railroads, education, ecclesiastical affairs, and the currency. It was plain, however, that, if Hungary could determine what taxes she should lay, and what troops she should raise, she had an effective veto on the central power. At the Diet of 1866, an address to the throne (the throne of Hungary) was adopted, in general terms expressing readiness to come into the plan of the central government, "if the political and administrative autonomy of Hungary be maintained intact." It accepts the Pragmatic Sanction, but rejects the diploma of October, 1860, as it then stood. So, the adjustment remains, at this time, unsettled.] — D.