I dissent from the opinion of the court.
■ I do not prop> -‘‘e to enter fully into the argument of the ease, because I concur entirely in the opinion of the Supreme Court of the State, which is set out at large in the record; and shall therefore briefly state the principles upon which my own opinion is founded.
1. It must be admitted that the State court had no jurisdiction in this case beyond that which the law of the State authorized it to exercise. And in revising their judgment, our. jurisdiction is equally limited. The law, under which this suit Was brought,' authorized the Board of Trustees of the Vincennes University,-to'file a bill in chancery against the State, in the nature of an action, of disseisin, for the purpose of trying the right of the trustees to the lands in question.
The-trustees,' therefore, are not entitled to a decree in their favor, unless they can show a legal title to the lands, such as .would enable them to maintain the common-law writ of entry, sur disseisin, .that is, they must be seised of the lands in fee-simple.
2. Indiana- was created a separate territory, and its powers apd rights, as a territorial government, defined by the act of 1800. This act certainly gave no power over the public lands, for it has no Reference to that subject. It merely establishes the territorial government. •
The act of 1804, under which the lands in question were reserved for the use of a seminary of learning, has no reference to the powers or duties of the territorial government, in relation to the lands reserved, or to any thing else. It merely provides for the sale of the public lands in the territory, reserving from sale this and other portions of them. But it does not transfer them to the territorial government which was then in existence. It-retains them. I do not see how these laws, taken separately or together; can be construed to give the- territorial government a right to dispose of’ them in any way, or- divest the title'which the United States held; and which this law directed to bé retained.
3. This reservation from sale, as well as the reservation of the.. *279school sections in the several townships,, undoubtedly dedicated them to the uses for which they were reserved; and they cannot be appropriated by the State to any other purpose. But the fund dedicated belonged to the United States, and they .alone had the power to transfer it, and to designate the body by whom the trust, created fry the act of Congress, should be administered. The law of the State complained of,, does not attempt to appropriate the land to a different purpose from that to which it was dedicated. It has been sold and conveyed by th State, and the proceeds appropriated to tlm support of a seminary of learning in the State. And the only question before us is, whether the trustees have the legal title to these lands, and can recover them back from the persons to whom they were sold by the State, for the purpose of appropriating them to a different seminary.
4. The act of the territorial government of 1806, incorporating this board of trustees, does not grant- nor profess to grant the lands to the board. And if it had done so, the act would have been void and inoperative, because the territorial legislature had no right to grant lands which belonged to the United States; nor to exercise any power over them, without the authority of Congress.
5. The act of Congress of 1816, by which Indiana was admitted into the Union as a State, grants these lands to the State for the purposes for which they were reserved. The State is made the trustee.
My brethren have put -a different construction on this clause of the law of 1816, and regard this grant as extending only to thé additional township mentioned in the law. But with every respect for their opinion, it appears plain to me that this township, as well as the additional one, are both granted to the State by Congress. And I am confirmed in this opinion, because, with all the research I have been able to make, I have not found a single instance in which lands reserved in a territory for the purposes of education, were not afterwards granted to the State, as the trustee to administer the trust, the school sections in the several townships, as well as others.
6. Upon these grounds, I think the plaintiffs in error have not a legal title to this land, and had no right to sell or dispose of it, nor in any way to control the proceeds; and that under the grant from Congress, in the act of 1816, the title and the right to administer the trust was vested in the State of Indiana.'
7. The error in the opinion, appears to meto have arisen from regarding the reservation from sale for the purposes of education, as divesting, the legal title of the United States, and putting it in abeyance, until some new body was brought into existence, *280capable'of taking the title as grantee, and administering the trust.
It is not necessary to this opinion to discuss the.doctrine of abeyance, upon which so much learning and talent has béen displayed by Mr. Fearne, in his treatise on Contingent Remainders. It is sufficient to state under what circumstances the title, in'the eye of the'law, is said to be in abeyance. And Comyns, in his Digest," tells us, that “ whén the fee or freehold of the land is not vested in any one,-- but stands solely in consideration of law, it is said to be in abeyance, or in nubibus
I cannot regard the title to lands reserved from sale by Congress, for the purposes of.education, as standing in this condition. A reservation is not a grant. 1 It does not pass the title out of the United Sffifes, but leaves it where it was before. The uniform- practice of the government, and of judicial decision also, •appears to have proceeded'on the ground that the title remained in the United States, until it was afterwards transferred by the authority of Congress. It is not usual, it is true, to issue patents for these lands, but they have been granted by acts of Congress,'which the courts have always recognized as valid conveyances. And I am not aware of any case in which the validity of these conveyances of reserved lands has been doubted by the court-; or in which it has been suggested that the title $vas out -of the United States, and in abeyance' from the time of- the reservation. If such be the result of a reservation,- the subsequent conveyance of Congress is of no value. And who is-to.protect the reserved lands from trespasses and depredations, while the title is in abeyance ?
In the case of Gaines and others v. Nicholson and others, reported in 9 "Howard, 356, the title to a section reserved for ■schools, was the matter in dispute. It did not, it is true, involve the question now before us. But it appears, in that case, that the section-was one of those reserved for schools in the different townships in the Territory of Mississippi, by an act of Congress passed in-1803; and that afterwards, as late as the year 1815, Another act was passed, authorizing the County Court of each couqty in the territory to lease the sections so reserved, in order to improve them, and to apply the rents to purposes of education within the township; and also to proceed and recover, damages against any persons found trespassing upon them. And this'law-contains an express provision that-every lease, in virtue' of this act, shall cease to have any force or effect after the first day- of January next, succeeding the establishment' of a State government. The trustees of the schools, who were parties to'.-this suit, were appointed under a law of the State, and claimed under that appointihent. . The point in. .dispute, was *281whether the opposing party had not a right' prior and superior to the State, by virtue of an Indian reservation, made in the treaty by which the territory had been ceded to the United States. And in deciding the question, this court treated the acts of Congress granting the land to the State, and also the law of the State appointing the Commissioners, as valid and constitutional; and it is hot suggested, in the opinion, that the inhabitants of the township had a legal title to the.school section, or any right to appoint Commissioners to control and administer the fund, unless authorized to do so by a law of the State. In the case before us, therefore, if the act of 1816 does not vest the title in the State, it still remains in the United States, and not in the trustees.
8. if, however, these lands were conveyed to the trustees, by virtue of the act of the territorial legislature of 1806, yet they were but agents of the State, without any private individual interests, and have no ground therefore for this proceeding in equity against the State. The whole fund yras created by the public for public purposes. And in the case of the Dartmouth College, (4 Wheat. 629,) the court said, “ If the act of incorporation be a grant, of political'power, if it create a civil institution to-be employed in the administration of the government, or if the funds of the college be public property, or if the State of New Hampshire, as a government, be alone interested in its transactions, the subject is one in which the legislature of the State may act- according to its own judgment, unrestrained by any limitation of its power imposed by the Constitution of the-United States.” "Here the funds are contributed entirely by the public for a public, purpose, and these appellants have no private individual interest, and allege none in their bill in behalf of themselves or others, which entitles them to maintain a suit against the State. They are public agents for a public purpose, and nothing more, and so describe themselves.' The laws of the State, which directed the appropriation of the fund to the uses for which it was dedicated, are therefore constitutional and valid, under the decision above referred to, and in my opinion the decree of the Supreme Court of the State ought to be affirmed.
Order.
This cause came on to bé heard on the transcript of the record from the Supreme Court of the State of Indiana, and was argued by counsel.- On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Supreme Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same *282is hereby, remanded to the said Supreme Court, in order that such further proceedings may be had therein, in conformity to the opinion of this court, as to law and justice may appertain.