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If the breach of covenant assigned be that
the State had no authority to sell and dispose of the land, it is not a
good plea in bar to say that the Governor was legally empowered to sell
and convey the premises, although the facts stated in the plea as
inducement are sufficient to justify a direct negative of the breach
assigned.
It is not necessary that a breach of covenant be assigned in the very
words of the covenant. It is sufficient if it show a substantial breach.
The Court will not declare a law to be unconstitutional unless the
opposition between the Constitution and the law be clear and plain.
The Legislature of Georgia, in 1795, had the power of disposing of the
unappropriated lands within its own limits.
In a contest between two individuals claiming under an act of a
legislature, the Court cannot inquire into the motives which actuated
the members of that legislature. If the legislature might
constitutionally pass such an act; if the act be clothed with all the
requisite forms of a law, a court, sitting as a court of law, cannot
sustain a suit between individuals founded on the allegation that the
act is a nullity in consequence of the impure motives which influenced
certain members of the legislature which passed the law.
When a law is in the nature of a contract, when absolute rights have
vested under that contract, a repeal of the law cannot devest those
rights.
A party to a contract cannot pronounce its own deed invalid, although
that party be a sovereign State. A grant is a contract executed.
A law annulling conveyances is unconstitutional because it is a law
impairing the obligation of contracts within the meaning of the
Constitution of the United States.
The proclamation of the King of Great Britain in 1763 did not alter the
boundaries of Georgia.
The nature of the Indian title is not such as to absolutely repugnant
to seisin in fee on the part of the State.
The question whether a law is void for its repugnancy to the
Constitution is at all times a question of much delicacy, which ought
seldom, if ever, to be decided in a doubtful case. The Court, when
impelled by duty to render such a judgment, would be unworthy of its
station could it be unmindful of the solemn obligations which that
station imposes. But it is not on slight implication and vague
conjecture that the legislature is to be pronounced to have transcended
its powers, and its act to be considered void. The opposition between
the Constitution and the law should be such that the judge feels a clear
and strong conviction of their incompatibility with each other.
One individual who holds lands in the State of Georgia under a deed
covenanting that the title of Georgia was in the grantor brings an
action of covenant on this deed, and assigns as a breach that some of
the members of the Legislature were induced to vote in favour of the law
which constituted the contract by being promised an interest in it, and
that therefore the act is a mere nullity. This solemn question cannot be
brought thus collaterally and incidentally before the Court. It would be
indecent in the extreme, upon a private contract between two
individuals, to enter into an inquiry respecting the corruption of the
sovereign power of the State. If the title be plainly deduced from a
legislative act which the legislature might constitutionally pass, if
the act be clothed with all the requisite forms of law, a court, sitting
as a court of law, cannot sustain a suit brought by one individual
against another founded on the allegation that the act is a nullity in
consequence of the impure motives which influenced certain members of
the legislature which passed the acts.
If a suit be brought to set aside a conveyance obtained by fraud, and
the fraud be clearly proved, the conveyance will be set aside as between
the parties, but the rights of third persons who are purchasers without
notice for a valuable consideration cannot be disregarded.
The principle asserted is that one legislature is competent to repeal
any act which a former legislature was competent to pass, and that one
legislature cannot abridge the powers of a succeeding legislature. The
correctness of this principle so far as it respects general legislation
cannot be controverted. But if an act be done under a law, a succeeding
legislature cannot undo it. The past cannot be recalled by the most
absolute power.
The State legislatures can pass no ex post facto law. An ex post facto
law is one which renders an act punishable in a manner in which it was
not punishable when it was committed. Such a law may inflict penalties
upon the person, or may inflict pecuniary penalties which swell the
public treasury. The legislature is then prohibited from passing a law
by which a man's estate, or any part of it, shall be seized for a crime
which was not declared by some previous law to render him liable for
punishment.
It was doubted whether a State can be seised in fee of lands subject to
the Indian title, and whether a decision that they were seised in fee
might not be construed to amount to a decision that their grantee might
maintain an ejectment for them notwithstanding that title. The majority
of the Court is of opinion that the nature of the Indian title, which is
certainly to be respected by all courts until it be legitimately
extinguished, is not such as to be absolutely repugnant to a seisin in
fee on the part of the State.
Error to the Circuit Court for the District of Massachusetts in an
action of covenant brought by Fletcher against Peck.
The first count of the declaration states that Peck, by his deed of
bargain and sale dated the 14th of May, 1803, in consideration of 3,000
dollars, sold and conveyed to Fletcher 15,000 acres of land lying in
common and undivided in a tract described as follows: beginning on the
river Mississippi, where the latitude 32 deg. 40 min. north of the
equator intersects the same, running thence along the same parallel of
latitude a due east course to the Tombigby river, thence up the said
Tombigby river to where the latitude of 32 deg. 43 min. 52 sec.
intersects the same, thence along the same parallel of latitude a due
west course to the Mississippi; thence down the said river, to the place
of beginning; the said described tract containing 500,000 acres, and is
the same which was conveyed by Nathaniel Prime to Oliver Phelps by deed
dated the 27th of February, 1796, and of which the said Phelps conveyed
four-fifths to Benjamin Hichborn, and the said Peck by deed dated the
8th of December, 1800; the said tract of 500,000 acres being part of a
tract which James Greenleaf conveyed to the said N. Prime, by deed dated
the 23d of September, 1795, and is parcel of that tract which James
Gunn, Mathew M'Allister, George Walker, Zachariah Cox, Jacob Walburger,
William Longstreet and Wade Hampton, by deed dated 22d of August, 1795,
conveyed to the said James Greenleaf; the same being part of that tract
which was granted by letters patent under the great seal of the State of
Georgia, and the signature of George Matthews, Esq. Governor of that
State, dated the 13th of January, 1795, to the said James Gunn and
others, under the name of James Gunn, Mathew M'Allister, and George
[p*88] Walker and their associates, and their heirs and assigns in fee
simple, under the name of the Georgia company; which patent was issued
by virtue of an Act of the Legislature of Georgia, passed the 7th of
January, 1795, entitled
An act supplementary to an act for appropriating part of the unlocated
territory of this State for the payment of the late State troops, and
for other purposes therein mentioned, and declaring the right of this
State to the unappropriated territory thereof, for the protection and
support of the frontiers of this State, and for other purposes.
That Peck, in his deed to Fletcher, covenanted
that the State of Georgia aforesaid was, at the time of the passing of
the act of the legislature thereof (entitled as aforesaid), legally
seised in fee of the soil thereof, subject only to the extinguishment of
part of the Indian title thereon. And that the Legislature of the said
State at the time of passing the act of sale aforesaid had good right to
sell and dispose of the same in manner pointed out by the said Act. And
that the Governor of the said State had lawful authority to issue his
grant aforesaid, by virtue of the said Act. And further, that all the
title which the said State of Georgia ever had in the aforegranted
premises has been legally conveyed to the said John Peck by force of the
conveyances aforesaid. And further, that the title to the premises so
conveyed by the State of Georgia, and finally vested in the said Peck,
has been in no way Constitutionally or legally impaired by virtue of any
subsequent act of any subsequent Legislature of the said State of
Georgia.
The breaches assigned in the first count was that, at the time the said
Act of 7th of January, 1795, was passed,
the said Legislature had no authority to sell and dispose of the
tenements aforesaid, or of any part thereof, in the manner pointed out
in the said Act.
In the second count,
that at Augusta, in the said State of Georgia, on the 7th day of
January, 1795, the said James Gunn, Mathew M'Allister [p*89] and George
Walker, promised and assured divers members of the Legislature of the
said State then duly and legally sitting in General Assembly of the said
State, that if the said members would assent to and vote for the passing
of the act of the said General Assembly, entitled as aforesaid, the same
then being before the said General Assembly in the form of a bill, and
if the said bill should pass into a law, that such members should have a
share of, and be interested in, all the lands which they the said Gunn,
M'Allister and Walker and their associates should purchase of the said
State by virtue of and under authority of the same law, and that divers
of the said members to whom the said promise and assurance was so made
as aforesaid were unduly influenced thereby, and, under such influence,
did then and there vote for the passing the said bill into a law, by
reason whereof the said law was a nullity, and, from the time of
passing, the same as aforesaid was, ever since has been, and now is,
absolutely void and of no effect whatever; and that the title which the
said State of Georgia had in the aforegranted premises at any time
whatever was never legally conveyed to the said Peck, by force of the
conveyances aforesaid.
The third count, after repeating all the averments and recitals
contained in the second, further averred that, after the passing of the
said act, and of the execution of the patent aforesaid, the General
Assembly of the State of Georgia, being a legislature of that State
subsequent to that which passed the said act, at a session thereof, duly
and legally holden at Augusta in the said State, did, on the 13th of
February, 1796, because of the undue influence used as aforesaid in
procuring the said act to be passed, and for other causes, pass another
certain act in the words following that is to say,
An act declaring null and void a certain usurped act passed by the last
legislature of this State at Augusta, the 7th day of January, 1795,
under the pretended title of
An act supplementary to an act entitled an act for appropriating a part
of the unlocated [p*90] territory of the State for the payment of the
late State troops, and for other purposes therein mentioned, declaring
the right of this State to the unappropriated territory thereof for the
protection of the frontiers, and for other purposes,
and for expunging from the public records the said usurped act, and
declaring the right of this State to all lands lying within the
boundaries therein mentioned.
By which, after a long preamble, it is enacted
That the said usurped act passed on the 7th of January, 1795, entitled,
&c. be, and the same is hereby declared, null and void, and the
grant or grants right or rights, claim or claims, issued, deduced, or
derived therefrom, or from any clause, letter or spirit of the same, or
any part of the same, is hereby also annulled, rendered void, and of no
effect, and as the same was made without constitutional authority, and
fraudulently obtained, it is hereby declared of no binding force or
effect on this State, or the people thereof, but is and are to be
considered, both law and grant, as they ought to be, ipso facto, of
themselves, void, and the territory therein mentioned is also hereby
declared to be the sole property of the State, subject only to the right
of treaty of the United States to enable the State to purchase, under
its preemption right, the Indian title to the same.
The second section directs the enrolled law, the grant, and all deeds,
contracts, &c. relative to the purchase to be expunged from the
records of the State, &c.;
The third section declares that neither the law nor the grant nor any
other conveyance, or agreement relative thereto shall be received in
evidence in any court of law or equity in the State so far as to
establish a right to the territory or any part thereof, but they may be
received in evidence in private actions between individuals for the
recovery of money paid upon pretended sales, &c.;
The fourth section provides for the repayment of money, funded stock, &c.
which may have been paid into the treasury, provided it was then
remaining [p*91] therein, and provided the repayment should be demanded
within eight months from that time.
The fifth section prohibits any application to Congress, or the General
Government of the United States for the extinguishment of the Indian
claim.
The sixth section provides for the promulgation of the act.
The count then assigns a breach of the covenant in the following words,
viz.:
And by reason of the passing of the said last-mentioned act, and by
virtue thereof, the title which the said Peck had, as aforesaid, in and
to the tenements aforesaid, and in and to any part thereof, was
constitutionally and legally impaired, and rendered null and void.
The fourth count, after reciting the covenants as in the first,
assigned as a breach
that at the time of passing of the Act of the 7th of January, 1795, the
United States of America were seised in fee simple of all the tenements
aforesaid, and of all the soil thereof, and that, at that time the State
of Georgia was not seised in fee simple of the tenements aforesaid, or
of any part thereof, nor of any part of the soil thereof, subject only
to the extinguishment of part of the Indian title thereon.
The defendant pleaded four pleas, viz.:
First plea. As to the breach assigned in the first count, he says,
That, on the 6th of May, 1789, at Augusta, in the State of Georgia, the
people of that State by their delegates, duly authorized and empowered
to form, declare, ratify, and confirm a constitution for the government
of the said State, did form, declare, ratify, and confirm such
constitution, in the words following:
[Here was inserted the whole Constitution, the sixteenth section of
which declares that the General Assembly hall have power to make all
laws and ordinances [p*92] which they shall deem necessary and proper
for the good of the State which shall not be repugnant to this
constitution.] The plea then avers that, until and at the ratification
and confirmation aforesaid of the said constitution, the people of the
said State were seised, among other large parcels of land, and tracts of
country, of all the tenements described by the said Fletcher in his said
first count, and of the soil thereof in absolute sovereignty, and in fee
simple (subject only to the extinguishment of the Indian title to part
thereon), and that, upon the confirmation and ratification of the said
Constitution, and by force thereof, the said State of Georgia became
seised in absolute sovereignty, and in fee simple, of all the tenements
aforesaid, with the soil thereof, subject as aforesaid, the same being
within the territory and jurisdiction of the said State, and the same
State continued so seised in fee simple until the said tenements and
soil were conveyed by letters patent under the great seal of the said
State, and under the signature of George Matthews, Esq., Governor
thereof, in the manner and form mentioned by the said Fletcher in his
said first count. And the said Peck further saith that on the 7th of
January, 1795, at a session of the General Assembly of the said State
duly holden at Augusta within the same, according to the provisions of
the said constitution, the said General Assembly, then and there
possessing all the powers vested in the Legislature of the said State by
virtue of the said Constitution, passed the Act above mentioned by the
said Fletcher in the assignment of the breach aforesaid, which Act is in
the words following that is to say, "An Act supplementary," &c.;
[Here was recited the whole act, which, after a long preamble, declares
the jurisdictional and territorial rights, and the fee simple to be in
the State, and then enacts that certain portions of the vacant lands
should be sold to four distinct associations of individuals, calling
themselves respectively, "The Georgia Company," "The
Georgia Mississippi Company," "The Upper Mississippi Company,"
and "The Tennessee Company."]
The tract ordered to be sold to James Gunn and [p*93] others (the
Georgia Company) was described as follows:
All that tract or parcel of land, including islands, situate, lying and
being within the following boundaries, that is to say, beginning on the
Mobile bay where the latitude 31 deg. north of the equator, intersects
the same, running thence up the said bay to the mouth of Lake Tensaw;
thence up the said Lake Tensaw to the Alabama River, including Curry's,
and all other islands therein; thence up the said Alabama River to the
junction of the Coosa and Oakfushee Rivers; thence up the Coosa River
above the big shoals to where it intersects the latitude of thirty-four
degrees north of the equator; thence a due west course to the
Mississippi River; thence down the middle of the said river to the
latitude 32 deg. 40 min.; thence, a due east course to the Don or
Tombigby River; thence down the middle of the said river to its junction
with the Alabama River; thence down the middle of the said river to
Mobile Bay; thence down the Mobile Bay to the place of beginning.
Upon payment of fifty thousand dollars, the Governor was required to
issue and sign a grant for the same, taking a mortgage to secure the
balance, being two hundred thousand dollars, payable on the first of
November, 1795.
The plea then avers that all the tenements described in the first count
are included in, and parcel of, the lands in the said Act to be sold to
the said Gunn, M'Allister, and Walker and their associates, as in the
Act is mentioned. And that, by force and virtue of the said Act, and of
the Constitution aforesaid, of the said State, the said Matthews,
Governor of the said State, was fully and legally empowered to sell and
convey the tenements aforesaid, and the soil thereof, subject as
aforesaid, in fee simple by the said patent under the seal of the said
State, and under his signature, according to the terms, limitations, and
conditions in the said Act mentioned. And all this he is ready to
verify; wherefore, &c. [p*94]
To this plea there was a general demurrer and joinder.
Second plea. To the second count, the defendant,
protesting that the said Gunn, M'Allister, and Walker did not make the
promises and assurances to divers members of the Legislature of the said
State of Georgia, supposed by the said Fletcher in his second count, for
plea saith that, until after the purchase by the said Greenleaf, as is
mentioned in the said second count, neither he the said defendant, nor
the said Prime, nor the said Greenleaf, nor the said Phelps, nor the
said Hichborn, nor either of them, had any notice nor knowledge that any
such promises and assurances were made by the said Gunn, M'Allister and
Walker, or either of them, to any of the members of the Legislature of
the said State of Georgia, as is supposed by the said Fletcher in his
said second count, and this he is ready to verify,
&c.;
To this plea also there was a general demurrer and joinder.
The third plea to the third count was the same as the second plea, with
the addition of an averment that Greenleaf, Prince, Phelps, Hichborn and
the defendant were, until and after the purchase by Greenleaf, on the
22d of August, 1795, and ever since have been, citizens of some of the
United States other than the State of Georgia.
To this plea also there was a general demurrer and joinder.
Fourth plea. To the fourth count, the defendant pleaded that, at the
time of passing the Act of the 7th of January, 1795, the State of
Georgia was seised in fee simple of all the tenements and territories
aforesaid, and of all the soil thereof, subject only to the
extinguishment of the Indian title to part thereof, and of this he puts
himself on the country, and the plaintiff likewise. [p*95]
Upon the issue joined upon the fourth plea, the jury found the
following special verdict, viz.:
That his late majesty, Charles the second, King of Great Britain, by
his letters patent under the great seal of Great Britain, bearing date
the thirtieth day of June, in the seventeenth year of his reign, did
grant unto Edward Earl of Clarendon, George Duke of Albemarle, William
Earl of Craven, John Lord Berkeley, Antony Lord Ashby, Sir George
Carteret, Sir John Colleton, and Sir William Berkeley, therein called
lords proprietors, and their heirs and assigns, all that Province,
territory, or tract of ground, situate, lying and being in North
America, and described as follows: extending north and eastward as far
as the north end of Carahtuke River or gullet, upon a straight westerly
line to Wyonoahe Creek, which lies within or about the degrees of
thirty-six and thirty minutes of northern latitude, and so west in a
direct line as far as the South Seas, and south and westward as far as
the degrees of twenty-nine inclusive, northern latitude, and so west in
a direct line as far as the South Seas (which territory was called
Carolina), together with all ports, harbours, bays, rivers, soil, land,
fields, woods, lakes, and other rights and privileges therein named;
that the said lords proprietors, grantees aforesaid, afterwards, by
force of said grant, entered upon and took possession of said territory,
and established within the same many settlements, and erected therein
fortifications and posts of defence.
And the jury further find that the northern part of the said tract of
land, granted as aforesaid to the said lords proprietors, was afterwards
created a colony by the King of Great Britain, under the name of North
Carolina, and that the most northern part of the thirty-fifth degree of
north latitude was then and ever afterwards the boundary and line
between North Carolina and South Carolina, and that the land, described
in the plaintiff's declaration, is situate in that part of said tract,
formerly called Carolina, which was afterwards a colony called South
Carolina, as aforesaid; that afterwards, on the twenty-sixth day of
July, in the [p*96] third year of the reign of his late majesty George
the second, King of Great Britain, and in the year of Our Lord one
thousand, seven hundred and twenty-nine, the heirs or legal
representatives of all the said grantees, except those of Sir George
Carteret, by deed of indenture, made between authorized agents of the
said King George the second and the heirs and representatives of the
said grantees, in conformity to an act of the parliament of said Kingdom
of Great Britain, entitled, "An act for establishing an agreement
with seven of the lords proprietors of Carolina for the surrender of
their title and interest in that Province to his majesty," for and
in consideration of the sum of twenty-two thousand five hundred pounds
of the money of Great Britain, paid to the said heirs and
representatives of the said seven of the lords proprietors, by the said
agent of the said King, sold and surrendered to his said majesty, King
George the second, all their right of soil, and other privileges to the
said granted territory; which deed of indenture was duly executed and
was enrolled in the chancery of Great Britain, and there remains in the
chapel of the rolls. That afterwards, on the ninth day of December, one
thousand, seven hundred and twenty-nine, his said majesty, George the
second, appointed Robert Johnson, Esq. to be Governor of the Province of
South Carolina, by a commission under the great seal of the said Kingdom
of Great Britain, in which commission the said Governor Johnson is
authorized to grant lands within the said Province, but no particular
limits of the said Province is therein defined.
And the jury further find that the said Governor of South Carolina did
exercise jurisdiction in and over the said colony of South Carolina
under the commission aforesaid, claiming to have jurisdiction by force
thereof as far southward and westward as the southern and western bounds
of the aforementioned grant of Carolina by King Charles the second, to
the said lords proprietors, but that he was often interrupted therein
and prevented therefrom in the southern and western parts of said grants
by the public enemies of the King of Great Britain, who at divers times
[p*97] had actual possession of the southern and western parts
aforesaid. That afterwards the right honourable Lord Viscount Percival,
the honourable Edward Digby, the honourable George Carpenter, James
Oglethorpe, Esq. with others, petitioned the lords of the committee of
his said majesty's Privy Council for a grant of lands in South Carolina,
for the charitable purpose of transporting necessitous persons and
families from London to that Province, to procure there a livelihood by
their industry, and to be incorporated for that purpose; that the lords
of the said Privy Council referred the said petition to the Board of
Trade, so called, in Great Britain, who, on the seventeenth day of
December, in the year of Our Lord one thousand seven hundred and thirty,
made report thereon, and therein recommended that his said majesty would
be pleased to incorporate the said petitioners as a charitable society,
by the name of "The Corporation for the purpose of establishing
charitable colonies in America, with perpetual succession." And the
said report further recommended that his said majesty be pleased "to
grant to the said petitioners and their successors for ever, all that
tract of land in his Province of South Carolina, lying between the
rivers Savannah and Alatamaha, to be bounded by the most navigable and
largest branches of the Savannah, and the most southerly branch of the
Alatamaha." And that they should be separated from the Province of
South Carolina, and be made a colony independent thereof, save only in
the command of their militia. That afterwards, on the twenty-second day
of December, one thousand seven hundred and thirty-one, the said board
of trade reported further to the said lords of the Privy Council, and
recommended that the western boundary of the new charter of the colony,
to be established in South Carolina, should extend as far as that
described in the ancient patents granted by King Charles the Second to
the late lords proprietors of Carolina, whereby that Province was to
extend westward in a direct line as far as the South Seas. That
afterwards, on the ninth day of June in the year of Our Lord one
thousand seven hundred and thirty-two, his said majesty, George the
[p*98] Second, by his letters patent, or royal charter, under the great
seal of the said Kingdom of Great Britain, did incorporate the said Lord
Viscount Percival and others, the petitioners aforesaid, into a body
politic and corporate, by the name of "The trustees for
establishing the Colony of Georgia, in America, with perpetual
succession;" and did, by the same letters patent, give and grant in
free and common socage, and not in capite, to the said corporation and
their successors, seven undivided parts (the whole into eight equal
parts to be divided) of all those lands, countries and territories,
situate, lying and being in that part of South Carolina in America which
lies from a northern stream of a river there commonly called the
Savannah, all along the seacoast to the southward unto the most southern
branch of a certain other great water or river, called the Alatamaha,
and westward from the heads of the said rivers respectively in direct
lines to the South Seas, and all the lands lying within said boundaries,
with the islands in the sea lying opposite to the eastern coast of the
same, together with all the soils, grounds, havens, bays, mines,
minerals, woods, rivers, waters, fishings, jurisdictions, franchises,
privileges, and preeminences within the said territories. That
afterwards, in the same year, the right honourable John Lord Carteret,
Baron of Hawnes, in the county of Bedford, then Earl Granville, and heir
of the late Sir George Carteret, one of the grantees and lords
proprietors aforesaid, by deed of indenture between him and the said
trustees for establishing the Colony of Georgia in America, for valuable
consideration therein mentioned, did give, grant, bargain and sell unto
the said trustees for establishing the Colony of Georgia aforesaid, and
their successors, all his one undivided eighth part of or belonging to
the said John Lord Carteret (the whole into eight equal parts to be
divided) of, in, and to the aforesaid territory, seven undivided eight
parts of which had been before granted by his said majesty to said
trustees.
And the jury further find that one-eighth part of the said territory,
granted to the said lords proprietors, and called Carolina as aforesaid,
which eighth part belonged [p*99] to Sir George Carteret, and was not
surrendered as aforesaid, was afterwards divided and set off in
severalty to the heirs of the said Sir George Carteret in that part of
said territory which was afterwards made a colony by the name of North
Carolina. That afterwards, in the same year, the said James Oglethorpe,
Esq. one of the said corporation, for and in the name of and as agent to
the said corporation, with a large number of other persons under his
authority and control, took possession of said territory, granted as
aforesaid to the said corporation, made a treaty with some of the native
Indians within said territory, in which, for and in behalf of said
corporation, he made purchases of said Indians of their native rights to
parts of said territory, and erected forts in several places to keep up
marks of possession. That afterwards, on the sixth day of September, in
the year last mentioned, on the application of said corporation to the
said Board of Trade, they the said Board of Trade, in the name of his
said majesty, sent instructions to said Robert Johnson, then Governor of
South Carolina, thereby willing and requiring him to give all due
countenance and encouragement for the settling of the said Colony of
Georgia, by being aiding and assisting to any settlers therein, and
further requiring him to cause to be registered the aforesaid charter of
the Colony of Georgia, within the said Province of South Carolina, and
the same to be entered of record by the proper officer of the said
Province of South Carolina.
And the jury further find that the Governor of South Carolina, after
the granting the said charter of the Colony of Georgia, did exercise
jurisdiction south of the southern limits of said Colony of Georgia,
claiming the same to be within the limits of his government; and
particularly that he had the superintendency and control of a military
post there, and did make divers grants of land there, which lands have
ever since been holden under his said grants. That afterwards, in the
year of Our Lord one thousand seven hundred and fifty-two, by deed of
indenture made between His said Majesty, George the Second, of the one
part, and the said trustees for establishing the [p*100] colony in
America, of the other part, they the said trustees, for divers valuable
considerations therein expressed, did, for themselves and their
successors, grant, surrender, and yield up to His said Majesty, George
the Second, his heirs and successors, their said letters patent, and
their charter of corporation, and all right, title and authority, to be
or continue a corporate body, and all their powers of government, and
all other powers, jurisdictions, franchises, preeminences and privileges
therein, or thereby granted or conveyed to them, and did also grant and
convey to His said Majesty, George the Second, his heirs and successors,
all the said lands, countries, territories and premises, as well the
said one eighth part thereof granted by the said John Lord Carteret to
them as aforesaid, as also the said seven eighth parts thereof, granted
as aforesaid by His said Majesty's letters patent or charter as
aforesaid, together with all the soils, grounds, havens, ports, bays,
mines, woods, rivers, waters, fishings, jurisdictions, franchises,
privileges and preeminences, within said territories, with all their
right, title, interest, claim or demand whatsoever in and to the
premises; and which grant and surrender aforesaid was then accepted by
His said Majesty for himself and his successors; and said indenture was
duly executed on the part of said trustees, with the privity and by the
direction of the common council of the said corporation by affixing the
common seal of said corporation thereunto, and on the part of His said
Majesty by causing the great seal of Great Britain to be thereunto
affixed. That afterwards, on the sixth day of August, one thousand seven
hundred and fifty-four, His said Majesty, George the Second, by his
royal commission of that date under the great seal of Great Britain,
constituted and appointed John Reynolds, Esq. to be Captain General and
Commander in Chief in and over said Colony of Georgia in America, with
the following boundaries, viz., lying from the most northerly stream of
a river there commonly called Savannah, all along the sea coast to the
southward unto the most southern stream of a certain other great water
or river called the Alatahama, and westward from the heads of the said
rivers respectively, in straight lines to the South Seas, and all the
space, circuit and precinct of [p*101] land lying within the said
boundaries, with the islands in the sea lying opposite to the eastern
coast of said lands within twenty leagues of the same. That afterwards,
on the tenth day of February, in the year of Our Lord one thousand seven
hundred and sixty-three, a definitive treaty of peace was concluded at
Paris, between his Catholic Majesty, the King of Spain, and his Majesty,
George the third, King of Great Britain, by the twentieth article of
which treaty, his said Catholic Majesty did cede and guaranty, in full
right to his Britannic Majesty, Florida, with fort St. Augustin, and the
bay of Pensacola, as well as all that Spain possessed on the continent
of North America, to the east or to the south east of the river
Mississippi, and in general all that depended on the said countries and
island, with the sovereignty, property, possession, and all rights
acquired by treaties or otherwise, which the Catholic King and the Crown
of Spain had till then over the said countries, lands, places, and their
inhabitants; so that the Catholic King did cede and make over the whole
to the said King and said Crown of Great Britain, and that in the most
ample manner and form.
That afterwards, on the seventh day of October, in the year of Our Lord
one thousand seven hundred and sixty-three, His said Majesty, George the
Third, King of Great Britain, by and with the advice of his Privy
Council, did issue his royal proclamation, therein publishing and
declaring that he, the said King of Great Britain, had, with the advice
of his said Privy Council, granted his letters patent, under the great
seal of Great Britain, to erect within the countries and islands ceded
and confirmed to him by the said treaty, four distinct and separate
governments, styled and called by the names of Quebec, East Florida,
West Florida and Grenada; in which proclamation the said government of
West Florida is described as follows, viz., bounded to the southward by
the Gulf of Mexico, including all islands within six leagues of the
coast from the river Apalachicola to lake Pontchartrain, to the westward
by the said lake, the lake Maurepas, and the River Mississippi; to the
northward by [p*102] a line drawn due east from that part of the River
Mississippi which lies in thirty one-degrees of north latitude, to the
river Apalachicola or Catahouchee; and to the eastward by the said
river. And in the same proclamation the said government of East Florida
is described as follows, viz., bounded to the westward by the Gulf of
Mexico and the Apalachicola river; to the northward by a line drawn from
that part of the said river where the Catahouchee and Flint Rivers meet,
to the source of St. Mary's River, and by the course of the said river
to the Atlantic Ocean; and to the east and south by the Atlantic Ocean
and the Gulf of Florida, including all islands within six leagues of the
seacoast. And in and by the same proclamation, all lands lying between
the Rivers Alatamaha and St. Mary's were declared to be annexed to the
said Province of Georgia; and that, in and by the same proclamation, it
was further declared by the said King as follows, viz.,
That it is our royal will and pleasure for the present, as aforesaid,
to reserve under our sovereignty, protection and dominion for the use of
the said Indians all the land and territories not included within the
limits of our said three new governments, or within the limits of the
territory granted to the Hudson's Bay Company, as also all the land and
territories lying to the westward of the sources of the rivers which
fall into the sea from the west and north-west as aforesaid; and we do
hereby strictly forbid, on pain of our displeasure, all our loving
subjects from making any purchases or settlements whatever, or taking
possession of any of the lands above reserved, without our special leave
and license for that purpose first obtained.
And the jury find that the land described in the plaintiff's
declaration did lay to the westward of the sources of the rivers which
fall into the sea from the west and northwest as aforesaid. That
afterwards, on the twenty-first day of November, in the year of Our Lord
one thousand seven hundred and sixty-three, and in the fourth year of
the reign of said King George the Third, he the said King, by his royal
commission under the great seal of Great Britain, did constitute and
appoint [p*103] George Johnstone, Esq. Captain General and Governor in
Chief over the said Province of West Florida in America; in which
commission the said Province was described in the same words of
limitation and extent, as in said proclamation is before set down. That
afterwards, on the twentieth day of January, in the year of Our Lord one
thousand seven hundred and sixty-four, the said King of Great Britain,
by his commission under the great seal of Great Britain, did constitute
and appoint James Wright, Esq. to be the Captain General and Governor in
chief in and over the Colony of Georgia, by the following bounds, viz.,
bounded on the north by the most northern stream of a river there
commonly called Savannah, as far as the heads of the said river; and
from thence westward as far as our territories extend; on the east, by
the sea coast, from the said river Savannah to the most southern stream
of a certain other river, called St. Mary; (including all islands within
twenty leagues of the coast lying between the said river Savannah and
St. Mary, as far as the head thereof;) and from thence westward as far
as our territories extend by the north boundary line of our Provinces of
East and West Florida.
That afterwards, from the year one thousand seven hundred and
seventy-five to the year one thousand seven hundred and eighty-three, an
open war existed between the colonies of New Hampshire, Massachusetts
Bay, Rhode Island and Providence Plantations, Connecticut, New York, New
Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina,
South Carolina and Georgia, called the United States, on the one part,
and His said Majesty, George the Third, King of Great Britain, on the
other part. And on the third day of September, in the year of Our Lord
one thousand seven hundred and eighty-three, a definitive treaty of
peace was signed and concluded at Paris by and between certain
authorized commissioners on the part of the said belligerent powers,
which was afterwards duly ratified and confirmed by the said two
respective powers, by the first article of which treaty, the said King
George the Third, by the name of his Britannic Majesty, acknowledged the
aforesaid United [p*104] States to be free, sovereign and independent
States; that he treated with them as such, and for himself, his heirs
and successors, relinquishes all claim to the government, propriety and
territorial rights of the same, and every part thereof; and by the
second article of said treaty, the western boundary of the United States
is a line drawn along the middle of the River Mississippi, until it
shall intersect the northernmost part of the thirty-first degree of
north latitude; and the southern boundary is a line drawn due east from
the determination of the said line, in the latitude of thirty-one
degrees north of the equator, to the middle of the River Apalachicola or
Catahouchee; thence along the middle thereof to its junction with the
Flint River; thence straight to the head of St. Mary's River; and thence
down along the middle of St. Mary's River to the Atlantic Ocean.
And the jury further find that in the year of Our Lord one thousand
seven hundred and eighty-two, the Congress of the United States did
instruct the said commissioners, authorized on the part of the United
States to negotiate and conclude the treaty aforesaid that they should
claim in this negotiation, respecting the boundaries of the United
States that the most northern part of the thirty-first degree of north
latitude should be agreed to be the southern boundary of the United
States, on the ground that that was the southern boundary of the Colony
of Georgia; and that the River Mississippi should be agreed to be the
western boundary of the United States, on the ground that the Colony of
Georgia and other colonies, now States of the United States, were
bounded westward by that river; and that the commissioners on the part
of the United States did, in said negotiation, claim the same
accordingly, and that, on those grounds, the said southern and western
boundaries of the United States were agreed to by the commissioners on
the part of the King of Great Britain. That afterwards, in the same
year, the Legislature of the State of Georgia passed an act declaring
her right, and proclaiming her title to all the lands lying within her
boundaries to the River Mississippi. And in the year of Our Lord, one
thousand seven hundred [p*105] and eighty five, the Legislature of the
said State of Georgia established a county, by the name of Bourbon, on
the Mississippi, and appointed civil officers for said county, which
lies within the boundaries now denominated the Mississippi territory;
that thereupon a dispute arose between the State of South Carolina and
the State of Georgia concerning their respective boundaries, the said
States separately claiming the same territory; and the said State of
South Carolina, on the first day of June, in the year of Our Lord one
thousand seven hundred and eighty-five, petitioned the Congress of the
United States for a hearing and determination of the differences and
disputes subsisting between them and the State of Georgia, agreeably to
the ninth article of the then Confederation and perpetual Union between
the United States of America; that the said Congress of the United
States did thereupon on the same day resolve that the second Monday in
May then next following should be assigned for the appearance of the
said States of South Carolina and Georgia, by their lawful agents, and
did then and there give notice thereof to the said State of Georgia, by
serving the Legislature of said State with an attested copy of said
petition of the State of South Carolina, and said resolve of Congress.
That afterwards, on the eighth day of May, in the year of Our Lord one
thousand seven hundred and eighty-six, by the joint consent of the
agents of said States of South Carolina and Georgia, the Congress
resolved that further day be given for the said hearing, and assigned
the fifteenth day of the same month for that purpose. That afterwards,
on the eighteenth day of May aforesaid, the said Congress resolved that
further day be given for the said hearing, and appointed the first
Monday in September, then next ensuing, for that purpose. That
afterwards, on the first day of September then next ensuing, authorized
agents from the States of Carolina and Georgia attended in pursuance of
the order of Congress aforesaid, and produced their credentials, which
were read in Congress, and there recorded, together with the acts of
their respective legislatures, which acts and credentials authorized the
said agents to settle and compromise all the differences [p*106] and
disputes aforesaid, as well as to appear and represent the said States
respectively before any tribunal that might be created by Congress for
that purpose, agreeably to the said ninth article of the Confederation.
And in conformity to the powers aforesaid, the said commissioners of
both the said States of South Carolina and Georgia, afterwards, on the
28th day of April, in the year of Our Lord one thousand seven hundred
and eighty-seven, met at Beaufort, in the State of South Carolina, and
then and there entered into, signed, and concluded a convention between
the States of South Carolina and Georgia aforesaid. By the first article
of which convention it was mutually agreed between the said States that
the most northern branch or stream of the River Savannah from the sea or
mouth of such stream to the fork or confluence of the Rivers then called
Tugaloo and Keowee; and from thence the most northern branch or stream
of said River Tugaloo, till it intersects the northern boundary line of
South Carolina, if the said branch or stream of Tugaloo extends so far
north, reserving all the islands in the said Rivers Savannah and
Tugaloo, to Georgia; but if the head, spring, or source of any branch or
stream of the said River Tugaloo does not extend to the north boundary
line of South Carolina, then a west course to the Mississippi, to be
drawn from the head, spring, or source of the said branch or stream of
Tugaloo River, which extends to the highest northern latitude, shall
forever thereafter form the separation, limit, and boundary between the
States of South Carolina and Georgia. And by the third article of the
convention aforesaid, it was agreed by the said States of South Carolina
and Georgia that the said State of South Carolina should not thereafter
claim any lands to the eastward, southward, southeastward, or west of
the said boundary above established; and that the said State of South
Carolina did relinquish and cede to the said State of Georgia all the
right, title, and claim which the said State of South Carolina had to
the government, sovereignty, and jurisdiction in and over the same, and
also the right and preemption of soil from the native Indians, and all
the estate, property, and claim which the said State of South Carolina
had in or to the said lands. [p*107]
And the jury further find that the land described in the plaintiff's
declaration is situate southwest of the boundary line last aforesaid;
and that the same land lies within the limits of the territory granted
to the said lords proprietors of Carolina, by King Charles the second,
as aforesaid, and within the bounds of the territory agreed to belong
and ceded to the King of Great Britain, by the said treaty of peace made
in seventeen hundred and sixty-three, as aforesaid; and within the
bounds of the United States, as agreed and settled by the treaty of
peace in seventeen hundred and eighty-three, as aforesaid; and north of
a line drawn due east from the mouth of the said River Yazoos, where it
unites with the Mississippi aforesaid. That afterwards, on the ninth day
of August, in the year of Our Lord one thousand seven hundred and
eighty-seven, the delegates of said State of South Carolina in Congress
moved that the said convention, made as aforesaid, be ratified and
conformed, and that the lines and limits therein specified be thereafter
taken and received as the boundaries between the said States of South
Carolina and Georgia; which motion was by the unanimous vote of Congress
committed, and the same convention was thereupon entered of record on
the journals of Congress; and on the same day, John Kean and Daniel
Huger, by virtue of authority given to them by the Legislature of said
State of South Carolina, did execute a deed of cession on the part of
said State of South Carolina, by which they ceded and conveyed to the
United States, in Congress assembled, for the benefit of all the said
States, all their right and title to that territory and tract of land
included within the River Mississippi, and a line beginning at that part
of the said River which is intersected by the southern boundary line of
the State of North Carolina; and continuing along the said boundary
line, until it intersects the ridge or chain of mountains which divides
the eastern from the western waters; then to be continued along the top
of the said ridge of mountains, until it intersects a line to be drawn
due west from the head of the southern branch of the Tugaloo River to
the said mountains, and thence to run a due west course to the River
Mississippi; which deed of cession was [p*108] thereupon received and
entered on the journals of Congress, and accepted by them.
The jury further find that the Congress of the United States did, on
the sixth day of September, in the year of Our Lord one thousand, seven
hundred and eighty, recommend to the several States in the Union having
claims to western territory to make a liberal cession to the United
States of a portion of their respective claims for the common benefit of
the Union. That afterwards, on the ninth day of August, in the year of
Our Lord one thousand seven hundred and eighty-six, the said Congress
resolved that, whereas the States of Massachusetts, New York,
Connecticut, and Virginia had, in consequence of the recommendation of
Congress on the sixth day of September aforesaid, made cessions of their
claims to western territory to the United States in Congress assembled
for the use of the United States, the said subject be again presented to
the view of the States of N. Carolina, S. Carolina and Georgia, who had
not complied with so reasonable a proposition, and that they be once
more solicited to consider with candour and liberality the expectations
of their sister States, and the earnest and repeated applications made
to them by Congress on this subject. That afterwards, on the twentieth
day of October, one thousand seven hundred and eighty-seven, the
Congress of the United States passed the following resolve, viz., that
it be and hereby is represented to the States of North-Carolina and
Georgia that the lands, which have been ceded by the other States in
compliance with the recommendation of this body, are now selling in
large quantities for public securities; that the deeds of cession from
the different States have been made without annexing an express
condition that they should not operate till the other States, under like
circumstances, made similar cessions; and that Congress have such faith
in the justice and magnanimity of the States of North Carolina and
Georgia that they only think it necessary to call their attention to
these circumstances, not doubting but, upon consideration of the
subject, they will fell those obligations which will induce similar
cessions, and justify that confidence which has been [p*109] placed in
them. That afterwards, on the first day of February, one thousand seven
hundred and eighty-eight, and Legislature of said State of Georgia, then
duly convened, passed an act for ceding part of the territorial claims
of said State to the United States, by which act the State of Georgia
authorized her delegates in Congress to convey to the United States the
territorial claims of said State of Georgia to a certain tract of
country bounded as follows, to-wit: beginning at the middle of the River
Catahouchee or Apalachicola, where it is intersected by the thirty-first
degree of north latitude, and from thence due north one hundred and
forty miles, thence due west to the River Mississippi; thence down the
middle of the said River to where it intersects the thirty-first degree
of north latitude, and along the said degree to the place of beginning;
annexing the provisions and conditions following, to-wit: that the
United States in Congress assembled shall guaranty to the citizens of
said territory a republican form of government, subject only to such
changes as may take place in the Federal Constitution of the United
States; secondly that the navigation of all the waters included in the
said cession shall be equally free to all the citizens of the United
States; nor shall any tonnage on vessels, or any duties whatever, be
laid on any goods, wares, or merchandises that pass up or down the said
waters, unless for the use and benefit of the United States. Thirdly
that the sum of one hundred and and seventy-one thousand and
twenty-eight dollars, forty-five cents, which has been expended in
quieting the minds of the Indians, and resisting their hostilities,
shall be allowed as a charge against the United States, and be admitted
in payment of the specie requisition of that State's quotas that have
been or may be required by the United States. Fourthly, that in all
cases where the State may require defence, the expenses arising thereon
shall be allowed as a charge against the United States, agreeably to the
Articles of Confederation. Fifthly that Congress shall guaranty and
secure all the remaining territorial rights of the State, as pointed out
and expressed by the definitive treaty of peace between the United
States and Great Britain, the convention between the said [p*110] State
and the State of South Carolina, entered into the twenty-eighth day of
April, in the year of Our Lord one thousand seven hundred and
eighty-seven, and the clause of an act of the said State of Georgia,
describing the boundaries thereof, passed the seventeenth day of
February, in the year one thousand seven hundred and eighty-three, which
act of the said State of Georgia, with said conditions annexed, was by
the delegates of said State in Congress presented to the said Congress,
and the same was, after being read, committed to a committee of
Congress; who, on the fifteenth day of July, in the said year one
thousand seven hundred and eighty-eight, made report thereon to
Congress, as follows, to-wit:
The committee, having fully considered the subject referred to them,
are of opinion that the cession offered by the State of Georgia cannot
be accepted on the terms proposed; first, because it appears highly
probable that, on running the boundary line between that State and the
adjoining State or States, a claim to a large tract of country extending
to the Mississippi, and lying between the tract proposed to be ceded and
that lately ceded by South Carolina will be retained by the said State
of Georgia; and therefore the land which the State now offers to cede
must be too far removed from the other lands hitherto ceded to the Union
to be of any immediate advantages to it. Secondly, because there appears
to be due from the State of Georgia, on specie requisitions, but a small
part of the sum mentioned in the third proviso or condition before
recited; and it is improper in this case to allow a charge against the
specie requisitions of Congress which may hereafter be made, especially
as the said State stands charged to the United States for very
considerable sums of money loaned. And, thirdly, because the fifth
proviso or condition before recited contains a special guaranty of
territorial rights, and such a guaranty has not been made by Congress to
any State, and which, considering the spirit and meaning of the
Confederation, must be unnecessary and improper. But the committee are
of opinion that the first, second, and fourth provisions, before
recited, and also the third, with some variations, may be admitted; and
that, should the said State extend the bounds of her cession, [p*111]
and vary the terms thereof as herein after mentioned, Congress may
accept the same. Whereupon they submit the following resolutions: That
the cession of claims to western territory, offered by the State of
Georgia, cannot be accepted on the terms contained in her act passed the
first of February last. That in case the said State shall authorize her
delegates in Congress to make a cession of all her territorial claims to
lands west of the River Apalachicola, or west of a meridian line running
through or near the point where that River intersects the thirty-first
degree of north latitude, and shall omit the last proviso in her said
act, and shall so far vary the proviso respecting the sum of one hundred
and seventy-one thousand four hundred and twenty-eight dollars, and
forty-five cents, expended in quieting and resisting the Indians as that
the said State shall have credit in the specie requisitions of Congress,
to the amount of her specie quotas on the past requisitions, and for the
residue, in her account with the United States for moneys loaned,
Congress will accept the cession.
Which report being read, Congress resolved that Congress agree to the
said report.
The jury further find that in the year of Our Lord one thousand seven
hundred and ninety-three, Thomas Jefferson, Esq. then secretary of State
for the United States, made a report to the then President of the United
States which was intended to serve as a basis of instructions to the
commissioners of the United States for settling the points which were
then in dispute between the King of Spain and the government of the
United States, one of which points in dispute was the just boundaries
between West Florida and the southern line of the United States. On this
point, the said secretary of State, in his report aforesaid, expresses
himself as follows, to-wit:
As to boundary that between Georgia and West Florida is the only one
which needs any explanation. It (that is, the court of Spain) sets up a
claim to possessions within the State of Georgia, founded on her (Spain)
having rescued them by force from the British during the late war. The
following view of that subject seems to admit of no reply. The several
States now composing the United [p*112] States of America were, from
their first establishment, separate and distinct societies, dependent on
no other society of men whatever. They continued at the head of their
respective governments the Executive Magistrate who presided over the
one they had left, and thereby secured in effect a constant amity with
the nation. In this stage of their government their several boundaries
were fixed, and particularly the southern boundary of Georgia, the only
one now in question, was established at the thirty first degree of
latitude, from the Apalachicola westwardly. The southern limits of
Georgia depend chiefly on, first, the charter of South Carolina, &c.
Secondly, on the proclamation of the British King, in one thousand seven
hundred and sixty-three, establishing the boundary between Georgia and
Florida, to begin on the Mississippi, in thirty-one degrees of north
latitude, and running eastwardly to the Apalachicola, &c. That
afterwards, on the seventh day of December, of the same year, the
commissioners of the United States for settling the aforesaid disputes,
in their communications with those of the King of Spain, express
themselves as follows, to-wit:
In this stage of their (meaning the United States) government, the
several boundaries were fixed, and particularly the southern boundary of
Georgia, the one now brought into question by Spain. This boundary was
fixed by the proclamation of the King of Great Britain, their chief
magistrate, in the year one thousand seven hundred and sixty-three, at a
time when to other power pretended any claim whatever to any part of the
country through which it run. The boundary of Georgia was thus
established: to begin in the Mississippi, in latitude thirty-one north,
and running eastward to the Apalachicola,
&c. From what has been said, it results, first that the boundary of
Georgia, now forming the southern limits of the United States, was
lawfully established in the year seventeen hundred and sixty-three.
Secondly, that it has been confirmed by the only power that could at any
time have pretensions to contest it.
That afterwards, on the tenth day of August, in the year 1795, Thomas
Pinckney, Esq. minister plenipotentiary [p*113] of the United States at
the Court of Spain, in a communication to the Prince of Peace, Prime
Minister of Spain, agreeably to his instructions from the President of
the United States on the subject of said boundaries, expresses himself
as follows, to-wit:
Thirty-two years have elapsed since all the country on the left or
eastern bank of the Mississippi, being under the legitimate jurisdiction
of the King of England that sovereign thought proper to regulate with
precision the limits of Georgia and the two Floridas, which was done by
his solemn proclamation, published in the usual form, by which he
established between them precisely the same limits that, near twenty
years after, he declared to be the southern limits of the United States,
by the treaty which the same King of England concluded with them in the
month of November, seventeen hundred and eighty two.
That afterwards, on the 27th day of October, in the year seventeen
hundred and ninety-five, a treaty of friendship, limits and navigation
was concluded between the United States and his Catholic Majesty the
King of Spain, in the second article of which treaty it is agreed that
the southern boundary of the United States, which divides their
territory from the Spanish colonies of East and West Florida, shall be
designated by a line beginning on the River Mississippi, at the
northernmost part of the thirty-first degree of north latitude, which
from thence shall be drawn due east to the middle of the River
Apalachicola or Catahouchee, thence along the middle thereof to its
junction with the Flint, thence straight to the head of St. Mary's
River, and thence down the middle thereof to the Atlantic Ocean.
But whether, upon the whole matter, the State of Georgia, at the time
of passing the act aforesaid, entitled as aforesaid, as mentioned by the
plaintiff, in his assignment of the breach in the fourth count of his
declaration, was seised in fee simple of all the territories and
tenements aforesaid, and of all the soil thereof, subject only to the
extinguishment of the Indian title [p*114] to part thereof, the jury are
ignorant, and pray the advisement of the court thereon; and if the court
are of opinion that the said State of Georgia was so seised at the time
aforesaid, then the jury find that the said State of Georgia, at the
time of passing the act aforesaid, entitled as aforesaid, as mentioned
by the said Fletcher, in his assignment of the breach in the fourth
count of his declaration, was seised in fee simple of all the
territories and tenements aforesaid, and of all the soil thereof,
subject only to the extinguishment of the Indian title to part thereof,
and the jury thereupon find that the said Peck his covenant aforesaid,
the breach whereof is assigned in the plaintiff's fourth count
mentioned, hath not broken, but hath kept the same.
But if the court are of opinion that the said State of Georgia was not
so seised at the time aforesaid, then the jury find that the said State
of Georgia, at the time of passing the act aforesaid, entitled as
aforesaid, as mentioned by the said Fletcher, in his assignment of the
breach in the fourth count of his declaration, was not seised of all the
territories and tenements aforesaid, and of all the soil thereof,
subject only to the extinguishment of the Indian title to part thereof,
and the jury thereupon find that the said Peck his covenant aforesaid,
the breach whereof is assigned in the plaintiff's fourth count
mentioned, hath not kept, but broken the same, and assess damages for
the plaintiff, for the breach thereof, in the sum of three thousand
dollars, and costs of suit.
Whereupon it was considered and adjudged by the court below that, on
the issues on the three first counts, the several pleas are good and
sufficient, and that the demurrer thereto be overruled; and on the last
issue, on which there is a special verdict that the State of Georgia was
seised, as alleged by the defendant, and that the defendant recover his
costs. [p*125] | |
| Mr.
Chief Justice MARSHALL delivered the opinion of the Court.
In this cause, there are demurrers to three pleas filed in the Circuit
Court, and a special verdict found on an issue joined on the 4th plea.
The pleas were all sustained, and judgment was rendered for the
defendant.
To support this judgment, this Court must concur in overruling all the
demurrers; for, if the plea to any one of the counts be bad, the
plaintiff below is entitled to damages on that count.
The covenant, on which the breach in the first count is assigned, is in
these words:
that the Legislature of the said State, (Georgia), at the time of the
passing of the act of sale aforesaid, had good right to sell and dispose
of the same, in manner pointed out by the said act.
The breach of this covenant is assigned in these words:
now the said Fletcher saith that, at the time when the said act of the
Legislature of Georgia, entitled an act, &c. was passed, the said
Legislature had no authority to sell and dispose of the tenements
aforesaid, or of any part thereof, in the manner pointed out in the said
act. [p*126]
The plea sets forth the Constitution of the State of Georgia, and avers
that the lands lay within that State. It then sets forth the act of the
legislature, and avers that the lands, described in the declaration, are
included within those to be sold by the said act, and that the Governor
was legally empowered to sell and convey the premises.
To this plea the plaintiff demurred; and the defendant joined in the
demurrer.
If it be admitted that sufficient matter is shown in this plea to have
justified the defendant in denying the breach alleged in the count, it
must also be admitted that he has not denied it. The breach alleged is
that the Legislature had not authority to sell. The bar set up is that
the Governor had authority to convey. Certainly an allegation that the
principal has no right to give a power, is not denied by alleging that
he has given a proper power to the agent.
It is argued that the plea shows, although it does not, in terms, aver,
that the Legislature had authority to convey. The court does not mean to
controvert this position, but its admission would not help the case. The
matter set forth in the plea, as matter of inducement, may be
argumentatively good, may warrant an averment which negatives the
averment in the declaration, but does not itself constitute that
negative.
Had the plaintiff tendered an issue in fact upon this plea that the
Governor was legally empowered to sell and convey the premises, it would
have been a departure from his declaration, for the count to which this
plea is intended as a bar alleges no want of authority in the Governor.
He was therefore under the necessity of demurring.
But it is contended that, although the plea be substantially bad, the
judgment overruling the demurrer, is correct because the declaration is
defective.
The defect alleged in the declaration is that the [p*127] breach is not
assigned in the words of the covenant. The covenant is that the
Legislature had a right to convey, and the breach is that the
Legislature had no authority to convey.
It is not necessary that a breach should be assigned in the very words
of the covenant. It is enough that the words of the assignment show,
unequivocally, a substantial breach. The assignment under consideration
does show such a breach. If the Legislature had no authority to convey,
it had no right to convey.
It is, therefore, the opinion of this Court that the Circuit Court
erred in overruling the demurrer to the first plea by the defendant
pleaded, and that their judgment ought therefore to be reversed, and
that judgment on that plea be rendered for the plaintiff.
After the opinion of the court was delivered, the parties agreed to
amend the pleadings, and the cause was continued for further
consideration.
The cause having been again argued at this term, as has been stated.
Mr. Chief Justice MARSHALL delivered the opinion of the Court.
The pleadings being now amended, this cause comes on again to be heard
on sundry demurrers, and on a special verdict.
The suit was instituted on several covenants contained in a deed made
by John Peck, the defendant in error, conveying to Robert Fletcher, the
plaintiff in error, certain lands which were part of a large purchase
made by James Gunn and others, in the year 1795, from the State of
Georgia, the contract for which was made in the form of a bill passed by
the Legislature of that State.
The first count in the declaration set forth a breach [p*128] in the
second covenant contained in the deed. The covenant is
that the Legislature of the State of Georgia, at the time of passing
the act of sale aforesaid, had good right to sell and dispose of the
same in manner pointed out by the said act.
The breach assigned is that the Legislature had no power to sell.
The plea in bar sets forth the Constitution of the State of Georgia,
and avers that the lands sold by the defendant to the plaintiff were
within that State. It then sets forth the granting act, and avers the
power of the Legislature to sell and dispose of the premises as pointed
out by the act.
To this plea the plaintiff below demurred, and the defendant joined in
demurrer.
That the Legislature of Georgia, unless restrained by its own
Constitution, possesses the power of disposing of the unappropriated
lands within its own limits, in such manner as its own judgment shall
dictate, is a proposition not to be controverted. The only question,
then, presented by this demurrer, for the consideration of the Court is
this: did the then Constitution of the State of Georgia prohibit the
Legislature to dispose of the lands which were the subject of this
contract in the manner stipulated by the contract?
The question whether a law be void for its repugnancy to the
Constitution is, at all times, a question of much delicacy, which ought
seldom, if ever, to be decided in the affirmative in a doubtful case.
The court, when impelled by duty to render such a judgment, would be
unworthy of its station could it be unmindful of the solemn obligations
which that station imposes. But it is not on slight implication and
vague conjecture that the Legislature is to be pronounced to have
transcended its powers, and its acts to be considered as void. The
opposition between the Constitution and the law should be such that the
judge feels a clear and strong conviction of their incompatibility with
each other.
In this case, the court can perceive no such opposition. In the
Constitution of Georgia, adopted in the [p*129] year 1789, the court can
perceive no restriction on the legislative power which inhibits the
passage of the Act of 1795. The court cannot say that, in passing that
Act, the Legislature has transcended its powers and violated the
Constitution. In overruling the demurrer, therefore, to the first plea,
the Circuit Court committed no error.
The third covenant is that all the title which the State of Georgia
ever had in the premises had been legally conveyed to John Peck, the
grantor.
The second count assigns, in substance, as a breach of this covenant
that the original grantees from the State of Georgia promised and
assured divers members of the Legislature, then sitting in General
Assembly that if the said members would assent to, and vote for, the
passing of the Act, and if the said bill should pass, such members
should have a share of, and be interested in, all the lands purchased
from the said State by virtue of such law. And that divers of the said
members to whom the said promises were made were unduly influenced
thereby, and, under such influence, did vote for the passing of the said
bill, by reason whereof the said law was a nullity, &c., and so the
title of the State of Georgia did not pass to the said Peck, &c.;
The plea to this count, after protesting that the promises it alleges
were not made, avers that, until after the purchase made from the
original grantees by James Greenleaf, under whom the said Peck claims,
neither the said James Greenleaf nor the said Peck, nor any of the mesne
vendors between the said Greenleaf and Peck, had any notice or knowledge
that any such promises or assurances were made by the said original
grantees, or either of them, to any of the members of the Legislature of
the State of Georgia. To this plea the plaintiff demurred generally, and
the defendant joined in the demurrer. [p*130]
That corruption should find its way into the governments of our infant
republics and contaminate the very source of legislation, or that impure
motives should contribute to the passage of a law or the formation of a
legislative contract are circumstances most deeply to be deplored. How
far a court of justice would, in any case, be competent, on proceedings
instituted by the State itself to vacate a contract thus formed, and to
annul rights required under that contract by third persons having no
notice of the improper means by which it was obtained is a question
which the court would approach with much circumspection. It may well be
doubted how far the validity of a law depends upon the motives of its
framers, and how far the particular inducements operating on members of
the supreme sovereign power of a State to the formation of a contract by
that power are examinable in a court of justice. If the principle be
conceded that an act of the supreme sovereign power might be declared
null by a court in consequence of the means which procured it, still
would there be much difficulty in saying to what extent those means much
be applied to produce this effect. Must it be direct corruption, or
would interest or undue influence of any kind be sufficient? Must the
vitiating cause operate on a majority, or on what number of the members?
Would the act be null whatever might be the wish of the nation, or would
its obligation or nullity depend upon the public sentiment?
If the majority of the Legislature be corrupted, it may well be doubted
whether it be within the Province of the judiciary to control their
conduct, and if less than a majority act from impure motives, the
principle by which judicial interference would be regulated is not
clearly discerned.
Whatever difficulties this subject might present when viewed under
aspects of which it may be susceptible, this Court can perceive none in
the particular pleadings now under consideration.
This is not a bill brought by the State of Georgia to annul the
contract, nor does it appear to the Court by [p*131] this count that the
State of Georgia is dissatisfied with the sale that has been made. The
case, as made out in the pleadings, is simply this. One individual who
holds lands in the State of Georgia, under a deed covenanting that the
title of Georgia was in the grantor, brings an action of covenant upon
this deed, and assigns, as a breach that some of the members of the
Legislature were induced to vote in favour of the law, which constituted
the contract, by being promised an interest in it, and that therefore
the act is a mere nullity.
This solemn question cannot be brought thus collaterally and
incidentally before the court. It would be indecent in the extreme, upon
a private contract, between two individuals, to enter into an inquiry
respecting the corruption of the sovereign power of a State. If the
title be plainly deduced from a legislative act, which the Legislature
might constitutionally pass, if the act be clothed with all the
requisite forms of a law, a court, sitting as a court of law cannot
sustain a suit brought by one individual against another founded on the
allegation that the act is a nullity in consequence of the impure
motives which influenced certain members of the Legislature which passed
the law.
The Circuit Court, therefore, did right in overruling this demurrer.
The fourth covenant in the deed is that the title to the premises has
been in no way constitutionally or legally impaired by virtue of any
subsequent act of any subsequent Legislature of the State of Georgia.
The third count recites the undue means practised on certain members of
the Legislature, as stated in the second count, and then alleges that,
in consequence of these practices and of other causes, a subsequent
Legislature passed an act annulling and rescinding the law under which
the conveyance to the original grantees was made, declaring that
conveyance void, and asserting the title of the State to the lands it
contained. The [p*132] count proceeds to recite at large, this
rescinding act, and concludes with averring that, by reason of this act,
the title of the said Peck in the premises was constitutionally and
legally impaired and rendered null and void.
After protesting, as before, that no such promises were made as stated
in this count, the defendant again pleads that himself and the first
purchaser under the original grantees, and all intermediate holders of
the property, were purchasers without notice. To this plea there is a
demurrer and joinder.
The importance and the difficulty of the questions, presented by these
pleadings are deeply felt by the Court. The lands in controversy vested
absolutely in James Gunn and others, the original grantees, by the
conveyance of the Governor, made in pursuance of an act of assembly to
which the Legislature was fully competent. Being thus in full possession
of the legal estate, they, for a valuable consideration, conveyed
portions of the land to those who were willing to purchase. If the
original transaction was infected with fraud, these purchasers did not
participate in it, and had no notice of it. They were innocent. Yet the
Legislature of Georgia has involved them in the fate of the first
parties to the transaction, and, if the act be valid, has annihilated
their rights also.
The Legislature of Georgia was a party to this transaction, and for a
party to pronounce its own deed invalid, whatever cause may be assigned
for its invalidity, must be considered as a mere act of power which must
find its vindication in a train of reasoning not often heard in courts
of justice.
But the real party, it is said, are the people, and when their agents
are unfaithful, the acts of those agents cases to be obligatory.
It is, however, to be recollected that the people can [p*133] act only
by these agents, and that, while within the powers conferred on them,
their acts must be considered as the acts of the people. If the agents
be corrupt, others may be chosen, and, if their contracts be examinable,
the common sentiment, as well as common usage of mankind, points out a
mode by which this examination may be made, and their validity
determined.
If the Legislature of Georgia was not bound to submit its pretensions
to those tribunals which are established for the security of property,
and to decide on human rights, if it might claim to itself the power of
judging in its own case, yet there are certain great principles of
justice, whose authority is universally acknowledged, that ought not to
be entirely disregarded.
If the Legislature be its own judge in its own case, it would seem
equitable that its decision should be regulated by those rules which
would have regulated the decision of a judicial tribunal. The question
was, in its nature, a question of title, and the tribunal which decided
it was either acting in the character of a court of justice, and
performing a duty usually assigned to a court, or it was exerting a mere
act of power in which it was controlled only by its own will.
If a suit be brought to set aside a conveyance obtained by fraud, and
the fraud be clearly proved, the conveyance will be set aside as between
the parties, but the rights of third persons who are purchasers without
notice, for a valuable consideration, cannot be disregarded. Titles,
which, according to every legal test, are perfect are acquired with that
confidence which is inspired by the opinion that the purchaser is safe.
If there be any concealed defect, arising from the conduct of those who
had held the property long before he acquired it, of which he had no
notice, that concealed defect cannot be set up against him. He has paid
his money for a title good at law; he is innocent, whatever may be the
guilt of others, and equity will not subject him to the penalties
attached to that guilt. All titles would be insecure, and the
intercourse [p*134] between man and man would be very seriously
obstructed if this principle be overturned.
A court of chancery, therefore, had a bill been brought to set aside
the conveyance made to James Gunn and others as being obtained by
improper practices with the Legislature, whatever might have been its
decision as respected the original grantees, would have been bound, by
its own rules and by the clearest principles of equity, to leave
unmolested those who were purchasers without notice for a valuable
consideration.
If the Legislature felt itself absolved from those rules of property
which are common to all the citizens of the United States, and from
those principles of equity which are acknowledged in all our courts, its
act is to be supported by its power alone, and the same power may devest
any other individual of his lands if it shall be the will of the
Legislature so to exert it.
It is not intended to speak with disrespect of the Legislature of
Georgia, or of its acts. Far from it. The question is a general
question, and is treated as one. For although such powerful objections
to a legislative grant as are alleged against this may not again exist,
yet the principle on which alone this rescinding act is to be supported
may be applied to every case to which it shall be the will of any
legislature to apply it. The principle is this: that a legislature may,
by its own act, devest the vested estate of any man whatever, for
reasons which shall, by itself, be deemed sufficient.
In this case the Legislature may have had ample proof that the original
grant was obtained by practices which can never be too much reprobated,
and which would have justified its abrogation so far as respected those
to whom crime was imputable. But the grant, when issued, conveyed an
estate in fee simple to the grantee, clothed with all the solemnities
which law can bestow. This estate was transferrable, and those who
purchased parts of it were not stained by that [p*135] guilt which
infected the original transaction. Their case is not distinguishable
from the ordinary case of purchasers of a legal estate without knowledge
of any secret fraud which might have led to the emanation of the
original grant. According to the well known course of equity, their
rights could not be affected by such fraud. Their situation was the
same, their title was the same, with that of every other member of the
community who holds land by regular conveyances from the original
patentee.
Is the power of the Legislature competent to the annihilation of such
title, and to a resumption of the property thus held?
The principle asserted is that one Legislature is competent to repeal
any act which a former legislature was competent to pass, and that one
legislature cannot abridge the powers of a succeeding legislature.
The correctness of this principle, so far as respects general
legislation, can never be controverted. But if an act be done under a
law, a succeeding legislature cannot undo it. The past cannot be
recalled by the most absolute power. Conveyances have been made, those
conveyances have vested legal estate, and, if those estates may be
seized by the sovereign authority, still that they originally vested is
a fact, and cannot cease to be a fact.
When, then, a law is in its nature a contract, when absolute rights
have vested under that contract, a repeal of the law cannot devest those
rights; and the act of annulling them, if legitimate, is rendered so by
a power applicable to the case of every individual in the community.
It may well be doubted whether the nature of society and of government
does not prescribe some limits to the legislative power; and, if any be
prescribed, where are they to be found if the property of an individual,
fairly and honestly acquired, may be seized without compensation?
[p*136]
To the Legislature all legislative power is granted, but the question
whether the act of transferring the property of an individual to the
public be in the nature of the legislative power is well worthy of
serious reflection.
It is the peculiar province of the legislature to prescribe general
rules for the government of society; the application of those rules to
individuals in society would seem to be the duty of other departments.
How far the power of giving the law may involve every other power, in
cases where the Constitution is silent, never has been, and perhaps
never can be, definitely stated.
The validity of this rescinding act, then, might well be doubted, were
Georgia a single sovereign power. But Georgia cannot be viewed as a
single, unconnected, sovereign power, on whose legislature no other
restrictions are imposed than may be found in its own Constitution. She
is a part of a large empire; she is a member of the American Union; and
that Union has a Constitution the supremacy of which all acknowledge,
and which imposes limits to the legislatures of the several States which
none claim a right to pass. The Constitution of the United States
declares that no State shall pass any bill of attainder, ex post facto
law, or law impairing the obligation of contracts.
Does the case now under consideration come within this prohibitory
section of the Constitution?
In considering this very interesting question, we immediately ask
ourselves what is a contract? Is a grant a contract?
A contract is a compact between two or more parties, and is either
executory or executed. An executory contract is one in which a party
binds himself to do, or not to do, a particular thing; such was the law
under which the conveyance was made by the Governor. A contract executed
is one in which the object [p*137] of contract is performed, and this,
says Blackstone, differs in nothing from a grant. The contract between
Georgia and the purchasers was executed by the grant. A contract
executed, as well as one which is executory, contains obligations
binding on the parties. A grant, in its own nature, amounts to an
extinguishment of the right of the grantor, and implies a contract not
to reassert that right. A party is therefore always estopped by his own
grant.
Since, then, in fact, a grant is a contract executed, the obligation of
which still continues, and since the Constitution uses the general term
"contract" without distinguishing between those which are
executory and those which are executed, it must be construed to
comprehend the latter as well as the former. A law annulling conveyances
between individuals, and declaring that the grantors should stand seised
of their former estates, notwithstanding those grants, would be as
repugnant to the Constitution as a law discharging the vendors of
property from the obligation of executing their contracts by
conveyances. It would be strange if a contract to convey was secured by
the Constitution, while an absolute conveyance remained unprotected.
If, under a fair construction the Constitution, grants are comprehended
under the term "contracts," is a grant from the State excluded
from the operation of the provision? Is the clause to be considered as
inhibiting the State from impairing the obligation of contracts between
two individuals, but as excluding from that inhibition contracts made
with itself?
The words themselves contain no such distinction. They are general, and
are applicable to contracts of every description. If contracts made with
the State are to be exempted from their operation, the exception must
arise from the character of the contracting party, not from the words
which are employed.
Whatever respect might have been felt for the State sovereignties, it
is not to be disguised that the framers of the Constitution viewed with
some apprehension [p*138] the violent acts which might grow out of the
feelings of the moment, and that the people of the United States, in
adopting that instrument, have manifested a determination to shield
themselves and their property from the effects of those sudden and
strong passions to which men are exposed. The restrictions on the
legislative power of the States are obviously founded in this sentiment,
and the Constitution of the United States contains what may be deemed a
bill of rights for the people of each State.
No State shall pass any bill of attainder, ex post facto law,
or law impairing the obligation of contracts.
A bill of attainder may affect the life of an individual, or may
confiscate his property, or may do both.
In this form, the power of the legislature over the lives and fortunes
of individuals is expressly restrained. What motive, then, for implying,
in words which import a general prohibition to impair the obligation of
contracts, an exception in favour of the right to impair the obligation
of those contracts into which the State may enter?
The State legislatures can pass no ex post facto law. An ex post facto
law is one which renders an act punishable in a manner in which it was
not punishable when it was committed. Such a law may inflict penalties
on the person, or may inflict pecuniary penalties which swell the public
treasury. The legislature is then prohibited from passing a law by which
a man's estate, or any part of it, shall be seized for a crime which was
not declared by some previous law to render him liable to that
punishment. Why, then, should violence be done to the natural meaning of
words for the purpose of leaving to the legislature the power of seizing
for public use the estate of an individual in the form of a law
annulling the title by which he holds that estate? The Court can
perceive no sufficient grounds for making this distinction. This
rescinding act would have the effect of an ex post facto law. It
forfeits the estate of Fletcher for a crime not committed by himself,
but by those from whom he purchased. [p*139] This cannot be effected in
the form of an ex post facto law or bill of attainder; why, then, is it
allowable in the form of a law annulling the original grant?
The argument in favour of presuming an intention to except a case not
excepted by the words of the Constitution is susceptible of some
illustration from a principle originally ingrafted in that instrument,
though no longer a part of it. The Constitution, as passed, gave the
courts of the United States jurisdiction in suits brought against
individual States. A State, then, which violated its own contract was
suable in the courts of the United States for that violation. Would it
have been a defence in such a suit to say that the State had passed a
law absolving itself from the contract? It is scarcely to be conceived
that such a defence could be set up. And yet, if a State is neither
restrained by the general principles of our political institutions nor
by the words of the Constitution from impairing the obligation of its
own contracts, such a defence would be a valid one. This feature is no
longer found in the Constitution, but it aids in the construction of
those clauses with which it was originally associated.
It is, then, the unanimous opinion of the Court that, in this case, the
estate having passed into the hands of a purchaser for a valuable
consideration, without notice, the State of Georgia was restrained,
either by general principles which are common to our free institutions
or by the particular provisions of the Constitution of the United
States, from passing a law whereby the estate of the plaintiff in the
premises so purchased could be constitutionally and legally impaired and
rendered null and void.
In overruling the demurrer to the third plea, therefore, there is no
error.
The first covenant in the deed is that the State of Georgia, at the
time of the act of the Legislature thereof entitled as aforesaid, was
legally seised in fee of the soil thereof subject only to the
extinguishment of part of the Indian title thereon. [p*140]
The fourth count assigns, as a breach of this covenant that the right
to the soil was in the United States, and not in Georgia. To this Court,
the defendant pleads that the State of Georgia was seised, and tenders
an issue on the fact in which the plaintiff joins. On this issue, a
special verdict is found.
The jury find the grant of Carolina by Charles Second to the Earl of
Clarondon and others, comprehending the whole country from 36 deg. 30
min. north lat. to 29 deg. north lat., and from the Atlantic to the
South Sea.
They find that the northern part of this territory was afterwards
erected into a separate colony, and that the most northern part of the
35 deg. of north lat. was the boundary line between North and South
Carolina. That seven of the eight proprietors of the Carolinas
surrendered to George II in the year 1729, who appointed a Governor of
South Carolina. That, in 1732, George II granted to the Lord Viscount
Percival and others seven eighths of the territory between the Savannah
and the Alatamaha, and extending west to the South Sea, and that the
remaining eighth part, which was still the property of the heir of Lord
Carteret, one of the original grantees of Carolina, was afterwards
conveyed to them. This territory was constituted a colony and called
Georgia. That the Governor of South Carolina continued to exercise
jurisdiction south of Georgia. That, in 1752, the grantees surrendered
to the Crown. That, in 1754, a Governor was appointed by the Crown, with
a commission describing the boundaries of the colony. That a treaty of
peace was concluded between Great [p*141] Britain and Spain in 1763 in
which the latter ceded to the former Florida, with Fort St. Augustin and
the bay of Pensacola. That, in October, 1763, the King of Great Britain
issued a proclamation creating four new colonies, Quebec, East Florida,
West Florida, and Grenada, and prescribing the bounds of each, and
further declaring that all the lands between the Alatamaha, and St.
Mary's should be annexed to Georgia. The same proclamation contained a
clause reserving, under the dominion and protection of the Crown, for
the use of the Indians, all the lands on the western waters, and
forbidding a settlement on them or a purchase of them from the Indians.
The lands conveyed to the plaintiff lie on the western waters. That, in
November, 1763, a commission was issued to the Governor of Georgia in
which the boundaries of that Province are described as extending
westward to the Mississippi. A commission describing boundaries of the
same extent was afterwards granted in 1764. That a war broke out between
Great Britain and her colonies which terminated in a treaty of peace
acknowledging them as sovereign and independent States. That in April,
1787, a convention was entered into between the States of South Carolina
and Georgia settling the boundary line between them.
The jury afterwards describe the situation of the lands mentioned in
the plaintiff's declaration in such manner that their lying within the
limits of Georgia, as defined in the proclamation of 1763, in the treaty
of peace, and in the convention between that State and South Carolina,
has not been questioned.
The counsel for the plaintiff rest their argument on a single
proposition. They contend that the reservation for the use of the
Indians, contained in the proclamation [p*142] of 1763, excepts the
lands on the western waters from the colonies within whose bounds they
would otherwise have been, and that they were acquired by the
Revolutionary War. All acquisitions during the War, it is contended,
were made by the joint arms, for the joint benefit of the United States,
and not for the benefit of any particular State.
The Court does not understand the proclamation as it is understood by
the counsel for the plaintiff. The reservation for the use of the
Indians appears to be a temporary arrangement suspending for a time the
settlement of the country reserved, and the powers of the royal Governor
within the territory reserved, but is not conceived to amount to an
alteration of the boundaries of the colony. If the language of the
proclamation be in itself doubtful, the commissions subsequent thereto
which were given to the Governors of Georgia entirely remove the doubt.
The question whether the vacant lands within the United States became a
joint property or belonged to the separate States was a momentous
question which at one time threatened to shake the American Confederacy
to its foundation. This important and dangerous contest has been
compromised, and the compromise is not now to be disturbed.
It is the opinion of the Court that the particular land stated in the
declaration appears, from this special verdict, to lie within the State
of Georgia, and that the State of Georgia had power to grant it.
Some difficulty was produced by the language of the covenant and of the
pleadings. It was doubted whether a State can be seised in fee of lands
subject to the Indian title, and whether a decision that they were
seised in fee might not be construed to amount to a decision that their
grantee might maintain an ejectment for them notwithstanding that title.
The majority of the Court is of opinion that the nature of the Indian
title, which is certainly to be respected [p*143] by all Courts until it
be legitimately extinguished, is not such as to be absolutely repugnant
to seisin in fee on the part of the State. Judgment affirmed with costs.
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