extreme, and opened the door, not only to persons of African descent, but to all those "of African nativity"—thereby proffering the boon of American citizenship to the comparatively savage and strange inhabitants of the "dark continent," while withholding it from the intermediate and much-betterqualified red and yellow races.

However, there is this to be said in excuse for this seeming inconsistency: the negroes of Africa were not likely to emigrate to this country, and therefore the provision concerning them was merely a harmless piece of legislative buncombe, while the Indian and Chinaman were in our midst, and at our doors and only too willing to assume the mantle of American sovereignty, which we ostentatiously offered to the African, but denied to them.

The conclusion being that an Indian is not a "white person" within the purview of the naturalization laws, the question arises, what is the status in this respect of the petitioner, who is a person of one-half Indian blood? In Louisiana, if the proportion of African blood did not exceed oneeighth, the person was deemed white; and this was the rule in the colonial code noir of France, and approved in Carolina. 2 Kent. 72, note b.

In Ohio it has been held that a person nearer white than black or red was a white person, within the provision in the state constitution of 1802, limiting the privilege of voting to the "white male inhabitants," etc.; but that where the colored blood was equal to or preponderated over the white blood, the person was not white.

In Jeffries v. Ankeny, 11 Ohio, 372, it was held that the offspring of a white man and a half-breed Indian woman was a voter; "that all nearer white than black, or of the grade between the mulattoes and the whites, were entitled to enjoy every political and social privilege of the white citizen." See Gray v. The State, 4 Ohio, 353; Thacker v. Hawk, 11 Ohio, 377; Lane v. Baker, 12 Ohio, 237.

Upon these authorities, and none other have come under my observation, the petitioner is not entitled to be considered a white man. As a matter of fact, he is as much an Indian

as a white person, and might be classed with the one race as properly as the other. Strictly speaking, he belongs to neither.

The power to say when and under what circumstances aliens may become American citizens belongs to congress. Citizenship is a privilege which no one has a right to demand; and in construing the acts of congress upon the subject of naturalization, the courts ought not to go beyond what is plainly written.

The petitioner is not a "white person" in fact, nor can he be so considered upon any reasonable construction of the statute, or within any rule that has ever been promulgated on the subject.

The application is denied.

CUTTING V. CUTTING and others.

(Circuit Court, D. Oregon. March 29, 1881.)

1. GRANT TO CHILDREN UNDER SECTION 4 OF THE DONATION ACT. Upon the death of a married settler, under section 4 of the donation act, (9 St. 497,) before receiving a patent for the donation, and without having exercised the power to sell or devise the same, his interest therein is granted to his widow and children or heirs, and they take as the direct donees of the United States, and not by descent from such settler; and therefore the property cannot be sold by the administrator to pay his debts.

2. CHILDREN.

The word "children," as used in section 4 of the donation act, includes grandchildren; so that the children of a deceased child are entitled by right of representation to a child's part in the donation occupied thereunder by their grandparents.

3. CHILDREN OR HEIRS.

The grant of the interest of a deceased settler in the donation to his "children or heirs," as provided in section 4 of the donation act, takes effect in favor of the children first, and to the heirs only in default of children.

4. HEIRS OF A DECEASED SETTLER.

The heirs of a deceased settler, under section 4, are such persons as the local law-the law of Oregon-makes his heirs.

5. PATENT TO THE HEIRS OF A DECEASED SETTLER.

A patent to the heirs of a deceased settler, under said section 4, presupposes that it was found in the land department that such settlers left no children, and the contrary cannot be shown to affect the patent in an action at law.

Action to Recover Real Property.

J. H. Reed and Hugh T. Bingham, for plaintiff.
W. Cary Johnson, for defendants.

DEADY, D. J. This action is brought by the plaintiff, a citizen of California, against the defendants, David Cutting, Orin Cutting, and G. J. Trullinger, citizens of Oregon, to recover the possession of an undivided one-fifth of the north half of the donation of Charles Cutting and Abigail, his wife, the same being claims numbered 47 and 52, and parts of sections 5 and 6 in township 4 S., range 2 E., and sections 1 and 2 in township 5 S., of the same range, and situated in the county of Clackamas.

The defendants David and Orin Cutting deny the allegations of the complaint, and allege that they are the owners in fee of the premises, except 116 acres thereof. The defendant Trullinger makes the like denials, and alleges that he is such owner of the said 116 acres.

By the stipulation of the parties the case is submitted to the court upon an agreed state of facts, which is to stand and be taken for the special verdict of a jury. From this it ap pears that Charles Cutting settled upon the claims aforesaid on April 11, 1849, and on May 3, 1864, duly proved his res idence and cultivation thereon, as provided in the donation act of September 27, 1850, (9 St. 497,) from June 20, 1850, until July 10, 1854; but did not then, nor thereafter, pay the fee required by law for the patent certificate, and died thereon, intestate, in the year 1868; that on February 28, 1870, upon the application of the administrator of said Charles Cutting, and upon the payment by him of the necessary fee therefor, a patent certificate for said donation was issued to said Abigail, the widow of said Charles Cutting, and to the "heirs at law" of the latter-the south half to said Abigail and the north half to said heirs; and that after

wards, on May 5, 1875, a patent was issued by the United States for said donation accordingly; that said Charles Cutting left surviving him David, Charles, and Adelia, his children, and also Ira, the plaintiff herein, and Emma, the children of his son A. J. Cutting, who died in the year 1855; that on April 4, 1869, said Emma was married, and that said Ira has duly acquired whatever interest said Emma had in said donation; that said Trullinger's title to said 116 acres consists in a conveyance to him of the same by the administrator aforesaid, in pursuance of a sale by him upon the authority of an order of the county court of said county to pay the debts of his intestate, and that the proceedings in which said order and sale were made were due and regular, except that said Emma was not served with any citation or process therein; and that the defendants' interest in the premises is, as alleged in their respective answers, unless the said Ira and Emma are entitled to an undivided one-fifth thereof under the donation act aforesaid and the facts herein stated, "as children or heirs at law of said Charles Cutting, deceased."

The questions of law which arise upon these facts depend principally for their solution upon the proper construction of that portion of section 4 of the donation act which provides (9 St. 497) that in all cases where the donees thereunder, being married persons, "have complied with the provisions of this act, so as to entitle them to the grant as above provided, whether under the late provisional government of Oregon or since, and either shall have died before patent issues, the survivor and children or heirs of the deceased shall be entitled to the share or interest of the deceased in equal proportions, except where the deceased shall otherwise dispose of it by testament duly and properly executed according to the laws of Oregon."

The same section also contains a proviso declaring "void" "all future contracts for the sale of the land," to which any person "may be entitled under this act, before he or they have received a patent therefor." But this proviso was repealed by section 2 of the act of July 17, 1855, (10 St. 306,) with the following qualification: "Provided, that no

sale shall be deemed valid unless the vendor shall have resided four years upon the land."

In Barney v. Dolph, 97 U. S. 652, Mr. Chief Justice Waite, speaking for the supreme court, held that this repeal of the prohibition to sell "was, under the circumstances, equivalent to an express grant of power to sell" after "the right to a patent had been fully secured;" and that such repeal did, by a necessary implication, "in cases where sales were made,” repeal the above provision in section 4, giving the interest of the settler in the donation, in case of his death before patent, to his devisee, or wife and children, or heirs, saying: 'Any provision in the act transferring the title of the settler, in case of his death before receiving the patent, to his child, heir, or devisee, is palpably inconsistent with an unlimited power to sell and convey the land. The two cannot stand together, and consequently the power of sale, which was the latest enactment, must prevail."

This construction of the act, however, leaves the interest of the settler who dies without a patent and without a sale to go or pass as originally provided-to his wife and children, or heirs, or devisee, as the case may be.

In Hall v. Russell, decided at the present term of the supreme court, Mr. Chief Justice Waite, speaking for the court, held that a settler upon the public lands under the donation act, prior to the completion of the four years' resi dence and cultivation required by the act, had only a possessory right thereto—that is, "a present right to occupy and maintain possession so as to acquire a complete right to the soil;" and that such settler was not qualified to take as a grantee under the act "until he had completed his four years of continued residence and cultivation," and performed "such other acts in the meantime as the statute required in order to protect his claim and keep it alive," such as giving "notice of the precise tract claimed," and proving "the commencement of the settlement and cultivation;" and that therefore a settler, dying before the completion of such resi dence and cultivation, had no estate in the land to dispose of by will or otherwise, but that under section 8 of the act his