THE first proposition, selected from the forego­ing numbers, as a subject of evidence and dis­cussion is, That the state of Georgia pretended to convey, in fee-simple, the lands in question.

THE evidence of this fact is presented in the orig­inal deed of the Georgia Missisippi Company, taken from a pamphlet published by order of the directors of that company, previous to the northern sales.

THE Governor's deeds to the other companies, their heirs and assigns forever, express a similar con­veyance of the lands in fee simple.

SECOND PROPOSITION. The companies assumed the term, fee-simple, and all the responsibility attached to it.

THE evidence that they assumed the term is pre­sented in the 7th section of the second article of the constitution of the Georgia Missisippi Company.

"The President and a majority of the whole Board of Directors and Executive Board collective­ly, shall have power, and they are hereby fully au­thorised to sell, and the grantees shall convey any part or parts, or the whole of the territory and rights, granted and conveyed to the Company, to any per­son or persons in FEE SIMPLE."

EVERY holder of Mississippi script was entitled by virtue of his purchase and certificate to have and hold to himself and his heirs and assigns forever, his propor­tion of the lands in fee simple. All the other com­panies assumed the term, fee simple—and the deeds to the northern purchasers generally express a convey­ance in the very words of the original deeds—but whether expressed or not, every purchaser is entitled to the fee simple by virtue of the public declaration made to the world, that the lands were thus holden and conveyed. Whenever a seller conveys lands in fee simple, he pledges his profits, his payments and his own property on the vesting of this kind of estate in the grantee. If the fee simple fails and he has done this ignorantly, yet he must replace the buyer in as good a situation as the buyer would have been, had the fee simple vested; but if he has used the ex­pression fraudulently to allure and deceive purchasers, he must refund the money paid and respond in dam­ages. In the present case it is wholly inconceivable that the Georgia companies have acted igno­rantly or under the influence of any doubt, whether the fee simple actually vested in them, or not.

THIRD PROPOSITION. The state of Georgia never had any right to the fee simple of the lands, conveyed to the companies.

AN estate in fee simple, is the largest and noblest estate, that a man can have in real property. The proprietor of such estate is invested with an absolute power to improve and dispose of his land as he pleases. ^* A fee is an estate of inheritance, being the highest interest, that a man can have in lands. When the word fee is used with the addition of the word sim­ple, it denotes an unconditional, unlimited estate. The fee simple in lands being the largest possible es­tate, comprehends all inferior and lesser estates, into which it may be divided. ^† This is the actual por­tion of estate to which the northern purchasers are en­titled.

OF the quality and value of visible estate the buy­er may judge; but as the portion of estate which the seller has a right to convey, often depends on a long series of papers in the possession of the seller or on construction of law, the uniform presumption is that the seller knows the foundation of his title and his portion of estate; therefore every expression used by the seller, expressing the kind of estate, is stric­ly construed and if he should sell the fee simple, when he owned but a lesser estate, he must save harmless the buyer from all loss, cost and damage occasioned by the failure of the fee simple. For this purpose the buyer has no need of covenants. His right of indemnity results from this principle of common equity, ‘That the seller shall cause the buyer to have that for which he received the money or se­curities of the buyer.’

THE money of the northern purchasers has been paid or their notes have been given for the fee sim­ple [Page 48]of the lands, and if the State of Georgia owned this unlimited estate, there must have been some time at which they began to own it and some source from which it must have been derived.

THE author of the state of facts well aware that the right of the state to sell the fee was all important, has assumed the burden of proving it. He first cre­ates out of nothing a right of pre-emption, ^* then by severalingenious transmutations changes this pre-emp­tive right into a right absolute in the soil. ^† At the opening of his fourth page, the indians were the quiet occupants of the lands in fee simple; but in the compass of eight pages, he has deprived them of the fee—has vested it in three powerful nations, humane­ly reserving to the Indians a right of hunting and fishing. ^‡ To shew the absurd origin of this right I present his exact words, page 4.

‘THE Spaniards, who made the first discovery of America, claimed a right to exclude all other nations from making establishments in this vast extent of country: But other nations refused to admit this absurd claim, in respect to such parts as the Span­iards had never even visited. The Spaniards in 1521 discovered, and soon after made a settlement in East Florida. The French some time after this, settled in Canada and from thence having acci­dentally found the great river Missisippi, and pur­suing its course, they discovered Louisiana, and in 1699 settled a colony at Mobile. The English, in 1607, made their first American settlement in Vir­ginia—These three powerful nations, having each got possession of a part, disputed about the extent of their several boundaries in these immense re­gions, through which an almost infinite number of Indian tribes were dispersed. Each claimed an exclusive right of purchasing from the natives [Page 49]such lands, as lay within the limits they chose to set to themselves; the sovereignty of which they al­so claimed: and this right of excluding other na­tions from purchasing the Indian lands, within such limits, is the foundation of the right of pre-emption. These disputes gave rise to the war, that was end­ed by the treaty of Paris, between France, Spain, and Great-Britain; by which in fact the principle of the right of pre-emption is recognized, in as much as many Indian tribes were living within the limits of each, as then agreed on.’

IT seems that the Spaniards, who claim to have first discovered this country, had (as they termed it) an indisputable right by the gift of Pope Alexander the 6th to the property and dominions of all the con­tinents, islands and seas between the arctic and ant­arctic poles, &c. ^† The French and English after­wards got footing here, and these three powerful nations not agreeing, went to war, made a peace and then recognised each others rights. Their quar­reling created the right, their treaty confirmed it!

ON this foundation is laid the whole building of pre-emptive rights and on this is raised all the claim of the state of Georgia to the fee-simple of the lands, described in the companies deeds.—The author of the State of Facts has traced the whole from this or­igin and if his outset were good, his conclusions in favor of the right of the state would be plausible at least: But what are the facts?

1st. THE Indians were the first discoverers of this country, and if first discovery and continued occu­pancy gives title according to the laws of nature and nations ^‡ they had acquired an unquestionable title. [Page 50]How many moons or centuries they had been here, when the Spaniards first discovered that they lived here, is to us wholly unknown. It is enough to the present purpose, that the Spaniards did not first dis­cover this country, and those, who are very solicitous to decide which has the honor of discovering this country, Columbus or Vespusius or Don Juan, may more discerningly direct their historical researches to some tawny warrior of some far distant age.

2d. THE discovery of the Spaniards, that this country was inhabited by peaceful inoffensive tribes, living on fishing and hunting, gave them no right to the soil, nor to the pre-emption of the soil; for the same law of nature which had given to the Indians the fee as first occupants, had also given them a right of selling it to whoever they pleased.

3d. THE gift of Pope Alexander, (being only an abridgment of his predecessor's proffer of all the kingdoms of the earth) partakes too much of the ri­diculous to be admitted as a serious ground of claim; yet this is as substantial, and certainly as sanctified a claim as ever was made by any christian nation to the pre-emption of Indian lands.

4th. THAT the French discovered the Indians and Spaniards in this country, and that the English found them all here, is no serious ground of claim against the Indians: for they are a party deeply interested in this transaction.

5th. THAT the Spanish, French and English could not agree in the ratio in which they might severally defraud and dispossess these first discoverers and oc­cupants—and that they went to war about it—and [Page 51]that they got tired of fighting and made a treaty at Paris—and that they then agreed on this ratio, are rather arguments of the ravenous and insatiable spirit of those days, than of the right of either to the soil or pre-emption of this country.

6th. THAT the king of Great Britain after this treaty, granted and patented out this country to the minions of his court and officers of his army, is no argument that he owned the fee or right of pre-emp­tion; even if conquest had given him title to any part, that could not extend to parts not conquered: therefore his patenting from sea to sea is rather to be considered as the vapouring of power, than as an evidence of right. But this may be otherwise ac­counted for;—the ignorance of the geography of this country, at that distant period, and even within the present century was great.—A man less subject than I am to a reverence for royalty and thrones would be apt to conceive that the kings of those days considered this continent as spread from north to south, like a piece of cloth upon a shop board, which they as arch taylors, were to cut into patterns according to the fancy of their employers: indeed a map of this country, exhibits such slashing, as shows its having been, at some time or other, roughly han­dled by the head servants of his Majesty's Lords of the bed-chamber.

7th. FROM the farcical parade of British charters we come to the declaration of independence, at which time the author of the state of facts contends, ‘that the limits of the thirteen British colonies, as fixed by the king's charters or letters patent, were ad­mitted as the bounds of the jurisdiction of each, without regard to the tribes of Indians living within such limits.’ This is a new way of sliding up a title. Pray were the Indians a party to this ad­mission and confederation? Did they agree to be [Page 52]subject to such jurisdictions? Are they to suffer the loss of all things to pay for the introduction of white people among them? Or are they laboring under some hidden curse, which the policy of the wiseacres of this world is forever to conceal? They have been suffering and retreating, till one would think that even power and avarice would say, it is enough. If there ever was reason for swarms to rise from older countries and to settle in this, they have already more than room enough for their hives: but be that as it may, the Indians now live in the country, described in the companies deeds. Their progenitors lived there long before the days of Columbus. They have oc­cupied and improved it—they have never abandoned it, nor been driven from it, and by the United States are recognised in treaties. The northern people have been accustomed to purchase land of Indians willing to sell, and the purchasers have regarded the Indians as lords of the soil, till deeds were obtained from them: So say the deeds in the records of the ancient colony of New-Haven: There the Indians conveyed the lands not their right of hunting and fishing on them—but can any one contemplate the lands in question and say that the state of Georgia owned the fee, so that Gov. Matthews could with propriety convey the lands in fee simple? For such is the expression in the deeds, In fee simple as tenants in common and not as joint-tenants. There is no such thing. The state of Georgia do not now pretend to the fee: The above words were inserted for the purpose of delusion. Congress dis­avow the idea of states claiming the fee of Indian lands. If the term could ever have been tolerably applied to any part of the Indian country at any period, since the settlement of this country; yet certainly the ap­plication of it to lands situated as these are, is wholly absurd.

[Page 53] By the laws of nature and nations, and by the laws of the United States the Indians have a right in fee and possession to all the lands, described in the companies deeds, and to all the attributes of this right as fully and absolutely as the people of Connecticut can have to their lands, and no act of discovery, con­quest, or occupancy, has ever vested any white na­tion with any semblance of title to these lands. No act of dereliction or disuse on the part of the Indians has ever left a moments opening to any possible claim of this kind—hence the repeated declarations of the state of Georgia—their negociations with Congress—the nature of sovereignty—the implications of the Con. of the U. S.—the extent of boundaries claimed by the state, and the treaty of peace; so much insisted on by the author of the state of facts amount to nothing, because they are built on nothing. Tis not enough that three powerful nations recognised each others right to the fee or pre-emption of Indian lands. Such a right must first have existed; else a recognition was absurd. That it did not exist has been shewn as clearly as a negative proposition can be shewn, and a plausible affirmative on the origin of this right has never been ushered into our world. The long continued, actual and peaceable possession of the first discoverers is an instant and ample confutation of all that can be said in favor of the right of the state of Georgia to sell the fee of these lands.

I HAVE dwelt thus fully on this subject, because the state of Georgia in the granting act expressed a conveyance of the fee-simple—because the grantees in their deeds to the northern purchasers expressed a conveyance of the fee; because the State of Facts published by the companies declares (page 12) the right of the companies to have been a right absolute in the soil—and because under the influence of these delusions the advocates for the granting act are attempt­ing [Page 54]to confound this subject by applying to it all the mazy principles, which in foreign countries have been drawn from feodal systems and landed tenures.

FROM the premises may be drawn the following conclusions.

1st. THE Georgia sellers, in selling the fee of those lands, sold that which they did not own—the granting act was no good evidence of a title to sell the fee—nothing has passed by their deeds and the consideration of the bargains has wholly failed. I say wholly, because from my premises the right of pre-emption, if it existed, would be as worthless as the claim to the fee is unfounded; but suppose that the right of pre-emption were of some value; yet the seller is not obliged to admit it even as a partial consideration: For if a man declares to the world by an advertisement or verbally, that he owns the fee of a house and land and offers them for sale and I buy them of him, and it afterwards appears that he had only a lease of them, I am not obliged to open an account current with him—charging him the pur­chase money and crediting him with the value of the lease; but the whole bargain is vacated, because the fee, which was the essence of it, did not exist. This is good law, whether accredited by the books or not. The above case would be more parallel, if the lease were to expire the next hour after the execution of the deed; for then the value of the lease would be just paramount to the value of a right of pre-emption to the Indian lands in the present case.

THE ready answer to this has been, You must have known the facts about this business, when you bought. My reply is, then we must have known that those, who circulated these pamphlets and who declared to us that they owned the fee, were impos­tors at the time of our purchase, which is hardly sup­posable. But if any one suppose it, he may be assur­ed that we did not know it 'till afterwards.

[Page 55] 2d. IF the fee of the lands was pretended to be conveyed; yet if in fact the fee did not pass—clear­ly the books on landed tenures must be closed; their principles cannot apply for reasons before stated. The purchasers are not to be driven to all circuities and formalities necessary for a recovery on an un­founded sale of the fee, because the sellers used the term fee. On a conveyance of lands which do not exist, or of lands inaccessible, the purchaser need not be outed and disseised; before he can recover against the seller.

FOURTH PROPOSITION. All which the deeds of the northern purchasers can possibly contain is the Georgia right of pre-emption.

THIS right is of such description, that a rescind­ing act is completely fatal to it. But before we come to this act, it may not be amiss to consider the nu­merous circumstances, which render this pre-emptive right of the least possible value.

1st. THE pretence of this right is a standing act of rebellion against the law of nature, which gives lands to the first occupants: It is contrary to the avowed principles of our settlement in this country—a con­stant violence done to the Indians, by depriving them of an inherent right of selling to the highest bidder—and a wanton grasping for territory beyond the exi­gences of this, and probably of any future, century.

2d. A PRETENCE of this pre-emption, though holding its right foot on the British charters, and its left on the treaty of peace is a direct violation of the laws of nature and nations, especially while sustained against the consent of the natives and the sovereign will of the union. The issue of the question, wheth­er these lands are or are not, within the territory of [Page 56]Georgia is yet doubtful; but the existence of a dis­pute and the measures of Congress on this subject, shew that the conclusions in the State of Facts, drawn from the acquiescence of Congress, are not correct; and that the Georgia right of pre-emption is not re­cognised by the supreme power of the union. We are not to believe that Congress are raising this ques­tion for the purpose of securing to the United States a right of pre-emption; but for the better purpose of substantially guaranting to the Indians, that indem­nity for wrongs and that protection from future in­croachments, which they so eminently deserve from us as a nation. To calculate otherwise would be impeaching the justice of the union.

3d. THE numbers, characters and situation of the Indian nations, who possess and cultivate these lands, form a phalanx of arguments against the value of a pre-emptive right, more formidable than the laws of nature or nations—arguments wholly unassailable by force or fraud, and far removed beyond the power of confutation.

4th. THIS pre-emptive claim, unsupported by the laws of nature and nations, disputed by the United States, unheeded by the Indians, stands solely on the declaration of the state of Georgia—on the simple assertion of the only party interested to make it—and standing thus alone was never of any value and prob­ably will never be of any value to the end of time.

PRE-EMPTIVE rights in their best estate are miser­able; but this standing on a grant rescinded and burnt—on a title no better at best, than the gift of Pope Alexander—contemplating lands never to be in market, is miserable in the extreme: but this vain and illusive right of pre-emption, because like Pindar's razors, good for market, became an object of purchase. The granting act gave them a sort of significance— the parchments with the Governor's name, the seal [Page 57]of the state and the words fee simple, all sanctioned by the usual formalities of sovereign legislation, aided by a State of Facts, bore a very imposing appearance.

PREVIOUS to the granting act several years had elapsed, in which these lands had not increased in value or demand; but now, by the magic alchymy of speculation, this shadowy, ambiguous right of pre­emption was commuted to a fee simple, and though bought at a fair price in January, had, by the Septem­ber following risen in market more than 400 per cent, and how high these productive acres would have risen is beyond calculation, if the rescinding act had not restored them to their original standard. By reason of this act the lands have ceased to be of value and the eyes of the northern purchasers have been opened to see the miserable foundation of the Georgia fee and pre-emption. This mighty fabric of speculation was built for tumbling and was desti­ned to crush in its fall the builders or the owners. Doubtless the Georgians estimate their right as of some value; the glare of this speculation has dazzled them—doubtless the purchasers, who have paid the whole of their money, wish to believe better things about this Georgia right. They will not be persuaded that fee and pre-emption can so suddenly sink out of sight. Will the same men be surprised to hear that even a palace with its magnificent cor­nices and entabletures has tumbled suddenly to ruins, after being informed that its real foundation was nothing more than painted bonnet-paper and that till the time of tumbling, it had been sustained by weak temporary props?

FROM the premises which have been present­ed, it is fair to conclude that the state of Georgia did pretend to sell the fee—that the state never own­ed [Page 58]the fee—that the fee never vested in the first com­panies—that the northern purchasers have never ac­quired the fee and therefore that the whole consider­ation of the bargains has failed.

FIFTH PROPOSITION. The fee and a right to buy the fee are widely different, and the Georgia claim to pre­emption is peculiarly worthless.

A RIGHT to buy a fee is no part of a fee. A right of pre-emption is a meer contingent right, equally ap­plicable to real and personal estates. It is a kind of thing, about which a covenant of seisin would be ab­surd; a thing to which no ouster can be applied. It may be of some value or of no value, according to the object of it—as in the present case.

IF the king of Great-Britain had a clear right to charter to the state of Georgia, an exclusive right to buy the lands in question—and had actually done it —and the lands were clearly within the bounds of that charter—and the right of pre-emption was un­contested—and the Indians were actually disposed to sell them for less than their value—and the state of Georgia had fairly assigned over this right of pre­emption—and if there were power enough to prevent their rescinding the assignment—and if no principle of law or policy could annul the assignment of pre­emptive rights to individuals; then a conveyance from the assignees would be of some value: That is, of just as much value as the Indians were willing to sell them, below what they could be sold for again: Which is just the amount of what the Indians would suffer, by being confined to one set of purchasers, instead of having all the world as bidders.

BUT what a confluence of contingencies is here? Without every one of which the right of pre-emp­tion [Page 59]is not worth having; and yet not one of them exists in the present case. Great-Britain had no right to charter the right of purchase—the bounda­ries of the state and the right of pre-emption in the premises are contested—the Indians have no dispo­sition to sell at any price—the state has never fairly assigned the right—they have rescinded their fraudu­lent assignment without a possibility of control, and both law and policy annul the assignment.

ALL these propositions, except the last, are sustain­ed in these numbers; and of the last, it is sufficient to observe, that if the law of nature and the policy of nations can have subjected the Indians to the pre­emption of a single state; yet that law and policy must have contemplated states as acting on just and liberal principles: But how excessive is the oppression —when a state may barter this right to individuals, and when these may transfer it through a great suc­cession of companies, each of which must, in giving an enhanced price for pre-emption, calculate on pur­chasing the fee for as much less than the state could have given for it, as the price which they gave was more than the states' price to the purchasers! No one can fail to see that every progression of sales in such a business is an injury to the Indians to the whole amount of the profits in each sale. The event is that the last purchaser has given so much, that he can afford very little for the Indian right—the In­dians cannot afford to sell it at such a reduced price —a war ensues, and this persecuted people must be driven nearer the southern ocean or the pole. Such has been too much the policy of the white people; and so far as the northern alienations of pre-emption have involved or induced this wrong, so far they have violated the laws of nature and the policy of nations.

THE author of the State of Facts on this subject says, (page 12) ‘It is exclaimed, what mischiefs [Page 60]would ensue, if individuals were allowed to pur­chase Indian rights! But it is no good objection to the validity of a title to property, that the pro­prietor may use it in such manner, as to become inconvenient to the public.’

I AM of those who adopt the exclamation and mean to include in it all which is above expressed —founding myself on an incontestible maxim that a law tending directly to immorality and injustice is void from the beginning. No legislature could have had power to enact such a law. ^* It is the province of phi­losophers to explore causes; that of legislators to calculate consequences. The wrong in this case is precisely coeval with the law; for it is manifest that even the first grantees could not give the native pro­prietors as much for their land as the state itself. Hence if law and policy had any reason for subjecting the natives to the pre-emption of a state, as for argu­ment's sake I have admitted, yet on the instant of al­ienating this to individuals, law and policy give way to avarice and oppression and the very principles on which the state claimed the right are abandoned. Hence the companies deeds are void, as given in violation of first principles.

IN pursuit of wealth men are apt to disregard principles and means; but when every view of this subject, while it discloses fraud and collusion, exhib­its the nothingness of these Georgia claims, surely the discerning purchaser will cease to look forward for gain: his sole object will be restitution for the money paid and indemnity for the wrong suffered.

SIXTH PROPOSITION. Suppose the state of Georgia had owned the fee of the lands; yet the granting act and the companies deeds are void on principles of common law.

BY reason of the variety of interests and opinions on this subject many will differ from me in some of my premises and conclusions respecting the fee and pre-emption of these lands, I am therefore disposed to try the strength of this question without the aid of them. Be it that the laws of nature and nations were made for white people, and that the Indian na­tions inhabiting and claiming these lands are to have no protection from the United States. Yet the northern purchasers have acquired nothing by their deeds. All the money paid, the notes given and the expence and labor created have been without any consideration; for the deeds of Governor Matthews to the companies and the granting act authorizing them are absolutely void on a fair principle of com­mon law. Which is, that ‘no man or body of men, not being in possession shall sell lands to another or others not in possession.’

THIS law has in several of the states been erected in­to a statute, for the purpose of making it known, and of defining the penalty—it is founded on substantial reason and calculated to prevent disputes, quarrels and bloodshed. The original deeds of the compa­nies present to the world a higher violation of this common law, than any which has been recorded. The deeds purport to be a conveyance of the fee sim­ple of certain tracts of land, including islands, &c. describing the very lands, owned, occupied and en­joyed immemorially by the Indian nations, and lands, whereon the Indians were claiming at the very time when these deeds were signed, and this within the knowledge of the grantors. The author of the State of Facts, whose perception of difficulties appears very [Page 62]accurate, endeavours to obviate this by erecting two sovereign rights on the same land. 1st. A fee sim­ple in the state of Georgia or as he terms it "a right in the soil simple and absolute in its nature." 2d. The Indians right of fishing and hunting, which he says, "is a right in the nation, as long as it continues to exist as a nation. It is an absolute right, of which it cannot be deprived, without its own consent in a fair purchase, by a voluntary abandonment, or by conquest."

This Indian right is unquestionably a sole right of possession, to the exclusion of all others, and has been so uniformly understood, ever since the settlement of this country. The author calls this Indian right an usufruct and says that "by long usage and general principles of law it is no less alienable than any other contingent or reversionary interest in lands whatso­ever." This is good sliding again: but where is a sin­gle instance, in this long usage, of a state selling the Indian lands in fee simple? Where is one general principle of law to justify such an usage? How come the words contingent and reversionary to be applied to lands sold in fee simple? The Indians know nothing about these nice distinctions, of right absolute in one and right perpetual in another, that is, a fee simple in Georgia, which comprehends and absorbs all lesser estates, and at the same time an usufruct in them, which completely absorbs and annihilates this fee.

THESE paradoxical niceties are exclusively vested in the Georgia companies, and the usufruct of them belongs to the author of the State of Facts.

BY the concession of this author the Indians own this perpetual right of usufruct so absolutely that they cannot be deprived of it, without their own con­sent in a fair purchase, by a voluntary abandonment or by conquest: Yet according to him the state of Georgia owns the fee-simple.

[Page 63] WE have now discovered what this fee-simple is. Instead of being like what the books call fee-simple, the greatest possible estate in lands—comprehending all lesser estates, it is the least possible estate and com­prehends nothing. Instead of being, as other fee-simples are, coeval with the creation of this earth, and always vesting in some one, it dates its existence from the date of the Georgia deeds, and never vested in any one, till the delivery of them.

THE companies deeds are made in defiance of the common law, at the very point, where the law mar­shals all its force: For the natural tendency of them is to produce, in a most aggravated degree, the very evils, the prevention of which gave existence to that law.

THE manner in which disputes, quarrels and blood­shed would naturally ensue from these deeds has been detailed in the last chapter.

HAD the Indians been conquered, and were in a state of rebellion against the state of Georgia.—Had the state ever possessed these lands, far otherwise might be the merits of this question—but the Indians are on the lands, claiming, cultivating and acknowl­edging no superior. Not only this: But by the very concession of the companies they are rightfully pos­sessing and enjoying every privilege of a fee except the name; and the selling of the name is of no use; except the eventual intention of that sale be, to give the purchasers a colour of right to defraud, dispute, quarrel with or murder the injured possessors.

THE subject analized—stript of its covering, pre­sents no other explanation: For the first companies cannot afford to give the Indians so much for their right, as the state could have given: Here is the foundation of fraud laid:—the first grantees can afford still less: The sales will be continued as long as any gain can be made: The fraud becomes magnified. [Page 64]Now if the Indians cannot be cheated, disputes and quarrels will be the consequence and murder will (as it ever has done, with those injured tribes) bring up the rear. Tis enough to my present purpose, that the state not being in possession, has sold to compa­nies not in possession, and this in direct violation of an acknowledged principle of common law. The statutes, which in this case are but a transcript of the common law declare all conveyances of this descrip­tion null and void, which terms may most warranta­bly be applied to the granting act and the compa­nies deeds.

SHALL it be said that common law principles are not to regulate and control legislative acts of sove­reign states? I am ready to agree to the position, provided it may be considered as an agreed point be­tween us—and it seems hardly competent that com­mon law principles should be applied to legislative acts, where there is no common law power to en­force the application: But this salvo will not help the companies; for they, knowing themselves not to be in possession, and purchasing of others who had no claim to possession, have, by their own violation of the same common law, made null and void their own title.—They can claim no exemption from com­mon law, unless they should claim that the sove­reignty of the state, (backed by long usage, accor­ding to the State of Facts,) can sanctify a wrong of the most atrocious magnitude. Be it however, for their sakes, that the state can do this; yet their deeds to the northern purchasers are null and void, for here both parties are subject to this law.

HE who seeks equity must have done equity. He who seeks law must have done legally: But in this case they, who are claiming all the aid of the com­mon law for the recovery of their notes, have, by their own shewing, been guilty of such a gross vio­lation [Page 65]of this common law, that the very men whom they are pursuing, have, by reason of this very violation, lost all title to the lands for which the notes were given.

IF ever a trial about the title to this naked vision­ary fee could be brought up, the objection here rais­ed, against the validity of the granting act and the companies deeds, would be conclusive against the northern purchasers; unless the court trying the question, should deviate from those decisions, which, I am told, have invariably prevailed on this subject.

I shall now proceed by a new compass to discover the fallacy of the companies pretensions.

SEVENTH PROPOSITION. The Georgia right of fee or pre-emption is not sustained by the system of landed ten­ures in this country.

JUDGE Blackstone in his Com. Vol. II. Page 7, says, ‘So long as (colonizing) was confined to the stocking and cultivation of desert uninhabited countries, it kept strictly within the limits of the law of nature: But how far the seizing on coun­tries already peopled and driving out or massa­cring the innocent and defenceless natives, merely because they differed from their invaders in language, religion, customs, government or colour; how far such a conduct was consonant to nature, rea­son or christianity, deserved well to be considered by those, who have rendered their names immor­tal by thus civilizing mankind.’

IT is well known that the first settlers of this coun­try owe no thanks to the principles accredited by this eminent writer. Whatever might have been their mo­tives for emigration; yet nature, reason and religion [Page 66]will put in no claim to serve as a basis to our landed tenures.

IN Trumbull's History of Connecticut may be found claims of title, liveries of seizin, and modes of ejectment, unknown to the civil or canon law.

IT is said that our fore-fathers were persecuted for their religion and forced from their native land into this, then howling wilderness. If history discovers that their tribulation had worked patience; if their conduct evinced their abhorrence of persecution— and if the wilderness ceased to howl at their ap­proach, we ought to bless the event,—It is said that the old world was overstocked, and that the natives of this had more land than they wanted. If history informs that our ancestors took their brethren of this new world by the hand and offered to give them, in exchange for the luxuries of this western hemisphere, the newly imported virtues and science of the east, we ought to bless the event. If He, whose is the earth, had decreed that our fore-fathers should have and enjoy this portion of it—and in token of this decree had put them in possession, we ought to cleave to this high evidence of title, and not to claim be­yond it. ‘Pleased with the possession, we seem a­fraid to look back to the means, by which it was acquired, as if fearful of some defect in our title; or at best we rest satisfied with the decision of the laws in our favor, without examining the reason or authority upon which those laws have been built. ^*’ But this stage of my subject forbids such delicacy—as we actually live here and our claim is not contested—we must seek some origin of it—and that being found, we shall be enabled to judge, whether it sustains the claim of Georgia, to the fee or pre-emption of the lands in question.

[Page 67] THE laws of nature and the subjects of occupan­cy, dereliction and disuse have been discussed suffi­ciently to convince, that on neither of these is our claim to this country supported. No principle found in books or avowed by man sustains this claim. No legal trial in this country has ever tried the strength of our title or decided its operations. From new premises must be new deductions, and he who endeavours to confound titles sustained by the law of nature, sanctioned by the books, confirmed by first occupancy and actual possession—with titles ha­ving no such origin, aims to pervert mankind—and turning books and principles from their natural to an unnatural use—prostitutes them to the base purposes of seduction, imposture and delusion.

"MIGHT OVERCOMES RIGHT" stands as the basis of this new system of landed te­nures, as will appear by the following historical com­ments on the discovery of America. ‘The war­like animals on which the Spanish officers were mounted; the artificial thunders which issued from their hands; the wooden castles, which had waft­ed them over the ocean, struck a panic into the natives, from which they did not recover, until it was too late. Wherever the Spaniards marched, they spared no age or sex, nothing sacred or pro­fane. The Spaniards went out with their dogs to hunt after men. The unhappy savages almost na­ked and disarmed, were pursued like deer into the thick of the forests, devoured by mastiffs, killed with gun shot, or surprised and burnt in their hab­itations. ^†’ These were the triumphant liveries of seizin in the southern parts of America!!

THE poverty of the inhabitants of Bahama taught Columbus, that this was not the country, which he [Page 68]was seeking.— ‘But steering further southward he found a country, abounding in all the necessaries of life, inhabited by a humane and hospitable peo­ple; and what was of still greater consequence, promising considerable quantities of gold. This, therefore, he proposed to make the centre of his discoveries.’

IT was not benevolence nor science which moved Columbus to discover countries already discovered; to people regions already populated, or to moralize nations, more virtuous than his own: But auri sacra fames, ^‡ more powerful than Euroclydon, drove this impetuous hero upon these defenceless natives. Ev­ery new discovery of gold formed a new epoch in this history and added fresh laurels to Guthrie's immortal Columbus.

THIS author exclaims, ‘It is impossible to deter­mine whether the genius of this great man in first conceiving the idea of these discoveries, or his sa­gacity in the execution of the plan he had con­ceived, most deserve our admiration.’ My admi­ration is more suspended between the base motives of the hero, and the unfounded panegyric of his biog­rapher. He adds, ‘No one is now imposed on by the name of Americus Vespusius; all the world knows that Columbus was the first discoverer.’ I am one (of all the world) who know no such thing. Because this transaction is wholly novel, yet is lan­guage to lose its usual significance? Is the term, DIS­COVERY, so convertible that it can be applied with in­creasing glory to new successions of adventurers?

AT the very time when this weight of glory devol­ved on Columbus, the immense regions of this coun­try were populated by millions far exceeding the numbers now living on it. Myriads of rational, in­telligent beings were scattered throughout every part, [Page 69]enjoying in innocence and simplicity the golden age of society. According to the above author, ‘The empire of Mexico, at this time, rich, powerful, in­habited by millions of Indians, had subsisted for a­ges; its inhabitants were not rude and barbarous; but every thing announced a polished and intelli­gent people.—Their government, founded on the sure basis of laws, combined with religion, seemed to bid defiance to time itself. Mexico, the capital of the empire, situated in the middle of a spacious lake, was the noblest monument of American in­dustry. It communicated to the continent by im­mense causeways, carried through the lake. The city was admired for its buildings all of stone, its squares and market places, the shops, which glit­tered with gold and silver, and the sumptuous pal­aces of Montezuma, some erected on columns of jasper, and containing whatever was most rare, curious or useful.’ This was the desert uninhabi­ted wild, destined for the discovery of that immortal brute Fernando Cortez, whose evidence of title was proclaimed by the groans of Guatimozin, while stretched on burning coals, to compel a discovery, where his treasures were con­cealed.

ANOTHER inhospitable wilderness tempted the patriotism of Pizarro. The Peruvian empire, foun­ded by Mango Capac, had been united, civilized, softened by the institution of a benevolent religion. "In short," says the above author, ‘there was no part of America, where agriculture and the arts were so assiduously cultivated, and where the peo­ple were of so mild and ingenuous manners. He adds, Pizarro had no conception of dealing gently with those, whom he called barbarians: But who, though less acquainted with the cruel art of des­troying their fellow-creatures, were more civili­zed than himself.’

[Page 70] SUCH are the exploits by which Southern America was discovered!! Let the names of Columbus, Cor­tez and Pizarro grace the historians' page and swell the poets numbers: I am perfectly willing that they shall be handed to posterity with equal and undivided honors.

NORTH-AMERICA, abounding less in valuable minerals, became a subject of more gradual and de­liberate discovery. Among the worthies, whose names have acquired a paper immortality on this sub­ject, the family of the Cabots stands most conspicu­ous. In 1494, John Cabot, a Venetian, (born in England) had the honor of discovering Newfoundland and the island of St. John's; in consequence of which Henry VII. confered on him another honor just equal to it—the order of Knighthood: Whereupon the said John died, and his son Sebastian, using his fa­ther's journals, had the honor of falling in with the continent in the 56th degree of north latitude—and thence the long extended honor of exploring the coast as far as the Floridas. ‘From these discoveries origin­ated the claims of England to these parts of the northern continent. ^*’

DURING all this time the Indians had the more substantial honor of living here—in numerous tribes —the unrivalled owners and occupiers of this coun­try. Their numbers, manners and mode of living may be seen in the above history, page 28 and on­wards.

THE king's patents opened our title; persecution gave occasion to assert it. I shall only quote one livery of seizin as a sample of the rest. In the year 1637, when quarrels between the ancient inhabitants and the patentees had prepared for the work of death, the conflict at Mistic decided the fortune of [Page 71]this infant colony. The intrepid Capt. Mason, find­ing that the Indians fought desperately for their wives, their children, their homes and their all, cried out to his men, We must burn them. He immediately entering a wigwam, took fire and put it into the mats, with which the wigwams were covered. The fire instantly kindling spread with such violence, that ‘all the Indian houses were soon wrapped in one gene­ral flame. The enemy were now seized with as­tonishment and forced by the flames from their lurking places into open sight and became a fair mark for the English soldiers. Some climbed the palisadoes and were instantly brought down by the fire of the English muskets. Others, desperately sallying forth from their burning cells, were shot or cut in pieces with the sword. Such terror fell upon them, that they would run back from the English into the very flames. Great numbers perished in the conflagration.’

‘THE greatness and violence of the fire, the reflec­tion of the light, the flashing and roaring of the arms, the shrieks and yellings of the men, women and children in the fort, and the shoutings of the Indians without, just at the dawn of the morning, exhibited a grand and awful scene. In little more than an hour this whole work of destruction was finished. Seventy wigwams were burnt and 5 or 600 Indians perished, either by the sword or in the flames. Thus parents and children, the san­nup and squaw, the old man and the babe, per­ished in promiscuous ruin.’

THIS eloquent description, taken literally from Doctor Trumbull's history ^* is presented as a sample [Page 72]of the liveries of seizin throughout North-America. The grandeur of the cruelty made the scene awful in­deed!

SUPPOSE that a subject of the Chinese nation should discover that we live here, occupying more land than we want, and savagely cheating each other with the surplus, and should report this to the Em­peror, and he should patent it out, and the patentees should come with sufficient force to subdue us and should actually involve parent and child, the old man and babe in one promiscuous ruin, and should after­wards be disputing about the honor of discovering this country. What would a survivor of these ruins call them: What would he think of them? The natives of this country differed no more from us than we do from the Chinese; they no more deserv­ed to have their buildings burnt than we deserve the same calamity. Of one blood are created all nations of men to dwell on the face of the earth: By the same laws of morality and of nature are they all bound; but manifestly on these laws our title can­not stand. I have introduced this discussion of the original discovery of this country to shew that in this instance MIGHT HAS OVERCOME RIGHT, and that we must resort to a system of landed tenures wholly unknown to the books.

THE king of Great-Britain patented these lands; not because he had any right to them; ^*; but because [Page 73]he was more powerful than the inhabitants, about whose coast his servant Cabot had navigated.

ON the idea of discovery, power or conquest, the charter of New-England, granted in 1620, could not contain much land, as but little was, at that time, conquered or discovered by the king's subjects. The same is true of that of Connecticut in 1631. Both are very indefinite as to the kind of right intended to be conveyed; but both manifestly express the premises as extending from sea to sea; and by virtue of these and similar charters the different states have claimed a right of preference to purchase, incroach or con­quer within the limits of them severally assigned.

THE first speculators in this business were the earl of Warwick and others to the number of 40, com­monly called "The great Plymouth Company." These sold Massachusetts to Sir Henry Roswell and others—Connecticut to Viscount Say and Seal and Co.—and thus the titles went from hand to hand, as the Georgia speculation has done, neither party in possession, and the natural consequence was disputes, quarrels and bloodshed.

As the principles of natural and common law are now out of the question, all was well enough; there was substantial land at bottom; power enough to assert it; and an unlimited right to exercise this power was implied in the original charter; in this it differed much from the present speculation. History discov­ers, that what money and fair words could not effect, this power effected—and in the event we have got the lands, and in them a goodly heritage.

[Page 74] THE divines, moralists and historians of our coun­try, confounded at the nothingness of these charters, and the cruelty which followed them, have endeav­oured to make up a title from a mixture of ingre­dients.

THE first of which is— The precedent of Moses in driving out the heathen from the promised land; and under this head we are told of the barbarity and sav­age manners of the natives of this country. As the precedent was of divine authority, and the case in question was not, they do not well compare.

2d. THAT our ancestors were persecuted and obliged to seek an asylum here. Much pains have been taken to rescue the characters of our persecuted pious an­cestors from the obloquy cast on the first companies. Be it remembered that the tenure of lands, and peace of conscience are things wholly distinct, and that this discussion has nothing to do with ecclesiastical bear­ings and distances. If persecution made an asylum necessary: yet an asylum from danger and a right to buy Indian lands, or to annoy, murder or expel quiet inhabitants are matters wholly different. If necessity be admitted as a fair argument; yet as that necessity extends not to the Georgia fee and pre-emption, its application to the present question is wholly inad­missible.

3d. THAT numerous treaties and purchases were made and Indian deeds obtained. This is the best evidence of title; but as these deeds express a conveyance of lands, not of any remnant of right therein they shew conclusively, that those, who made these purchases, did not rely on their charters. As there is no pretence that these Georgia lands have been bought or that any deed has been obtained, this evidence of title does not exist in the present case.

[Page 75] 4th. WHEN the argument of conquest is used, that not extending to the lands in question affords no evidence of right.

WHETHER the lands now owned, occupied and enjoyed without molestation, by the citizens of the United States, are claimed on the ground of necessi­ty, religion, persecution, treaty, purchase or conquest or whatever pretence of claim may be made to them:—Let it be regarded, that they are well hold­en; but as none of these pretences can be made to the lands in question—the Georgia claim to fee or pre-emption is not sustained.

BUT the northern states have claimed a right of pre­emption, let us try the origin and application of this.

THE doctrine of pre-emptive right has always been understood with us as a mere right of a colony or state to exclude other colonies or states from pur­chasing lands within the limits of their charters, which understanding included in it a reservation to themselves to purchase whenever the natives were disposed to sell. In this was not included any idea of a right in fee vesting in a colony or state, nor of any financial resources resulting from such reserva­tion.

THOUGH this reservation followed the charter lines, it resulted not from the charter, but from the necessity of the case.

AFTER many years settlement in this country, it was found inexpedient to suffer individuals to be tampering with the natives for purchases of land; in consequence of which laws were made to prevent it.

THAT of Connecticut, enacted in 1717 is as fol­lows:

THE same necessity led up a similar arrangement between the colonies, and though it was an evil and a wrong to the natives; yet of two evils it was the least, as a competition among the colonies, about pur­chases, might lead to quarrels and wars with the na­tives. At the union of the colonies, this reservation was not thrown into common stock. By the treaty of peace a line between the British possessions and the United States was designated, which extending to the Missisippi, left within our lines about 220 millions acres of territory, mostly owned and enjoy­ed immemorially by the natives. In the confedera­tion of the United States, the reservation of each was not relinquished. But the reservation thus continu­ed was in no respect fortified.

HOWEVER inventive speculation had in the mean time suggested, that selling this reservation to com­panies would obviate the evils contemplated by suf­fering individuals to purchase. The idea of filling the public coffers by selling this indefineable some­thing induced the sale of the Chenessee country, and the lands south of Lake Erie. By the deeds the [Page 77]purchasers were not invested with the FEE SIMPLE of the lands, nor with any attribute of real estate; but with a right of excluding others from purchasing them, and of being purchasers in their own persons, whenever the policy of the United States and the dis­position of the natives to sell, should coincide to bring them into market.

IN these sales the states did not authorize the pur­chasers to claim any right against the natives, on the ground of necessity, religion, persecution, treaty, purchase or conquest. All this new system of landed tenures had wrought its perfect work. The states merely withdrew themselves from the chance such as it was, and in the two first releases received less than a 30th part of what the lands in fee with a right of posses­sion would have been worth.

IN the mean time the policy of the United States, tho' elevated above the idea of taking advantages of the Indians; yet not having power to compel ces­sions of this territory, had, by making treaties on the one hand, and on the other enacting laws, con­troling the exercise of these reservations, sufficiently expressed its authority over pre-emptive rights.

THIS policy was expressed by the law on this sub­ject passed March 1st, 1793.

‘No purchase or grant of lands or of any title or claim thereto, from any Indians or nation or tribe of Indians within the bounds of the United States, shall be of any validity in law or equity, unless the same be made by a treaty or convention entered into pursuant to the constitution.’

WHEN cessions of territory have been made to the United States, the utmost exertions could never draw from the supreme legislature any concession of the existence of a pre-emptive right, or any guaranty of any part to be reserved. ^*

[Page 78] WHAT confidence could be placed in the wisdom, policy or good faith of a nation, which should sign treaties with one hand and with the other betray the tribes, with whom they were made? Or what confi­dence could be placed in a nation, which trampling on the laws of nature, and the sacred doctrine of e­qual rights, should give sanction to charters, baseless as those of the states, by aiding to extend their effects beyond the bounds, which even avarice and cruelty had formerly set to them? But this confidence remains; this policy has never been relaxed, except when the relaxation was perfectly in unison with the feelings and interests of the tribes concerned.

As the purchasers of the northern pre-emptions, have in fair market, with full consent of all parties, bought the fee and possession of the lands, and as no question has ever been had on the merits of the sub­ject, it is impossible to draw any legal inference from our quit-claims to the Georgia conveyances.

As the northern states never claimed nor alienated the fee simple—as they alienated no right to pur­chase—as the congressional power to hold a treaty alone gave the right to purchase, and as actual pur­chase northern quit-claims on this subject amounted to no more than a declaration on the part of the states that they would never attempt to exercise a claim, which from my premises, appears to have had no founda­tion even in the base principles of their charters, and which exercise had before been controled by the U­nited States.

THESE states did not pretend to any fraud and collusion practised on them, and therefore did not rescind their quit-claims: had they done this, the consequence might have furnished a precedent in the present case.

[Page 79] As the event has proved, their renunciations of claim have not been prejudicial to the interest nor opposed to the policy of the union; therefore the evils, fairly calculable, as the issue of absolute claims on indian land have not occurred. But in the case of the Georgia sales, no such event can have pre­sented.

THEREFORE—Whether we canvass the discovery of this country—the charters of the colonies, lead­ing up their new system of landed tenures—the practice of the northern states upon this system—or the policy of the union; every view of the subject presents a more hideous conception of the daring swindling practised on the world by the Georgia granting act, and the companies deeds purporting to be conveyances of the fee-simple of the Indian lands.

THIS view of our subject, while it excludes forev­er the idea of a fee-simple, vesting in the state of Georgia, presents abundant reasons why the northern people were deluded by this speculation—and while it discloses a new system of landed tenures—excludes all the book principles on landed tenures—and all decisions upon those principles from any application to the present case.

As the insertion of the word FEE-SIMPLE in the companies deeds led up the whole imposture, I pre­sent that insertion as a supreme instance of fraud, collusion and atrocious speculation, engendered be­tween corrupt members of a legislature and corrupt­ing purchasers, for the express purpose of swindling.

HAD the companies deeds expressed a conveyance of the mere right of pre-emption, the northern sales could never have been effected. Men, alive, awake, capable of calculation as the northern people are, [Page 80]would never have bartered their substantial property for such a miserable shadow.

SHEER FALSHOOD MARKED THE FRONT OF THIS DE­TESTABLE TRANSACTION.

THE next proposition selected from the first pamphlet, as a subject of evidence and discus­sion, is, that the state of Georgia has fairly, legally and equitably rescinded the granting act.

THE evidence of this rescinding is presented in the following form.

THIS rescinding act, whether regarded in a legal, equitable or moral point of view does the highest credit to the legislature which passed it. If it depriv­ed the northern purchasers of momentary hopes of wealth without labor, it probably saved thousands from imposition. If it nipt in the bud a number of aspiring swindlers, it exhibited to the world an act of sovereign justice, which thoroughly canvassed, will be found to stand on an immoveable basis.

SECOND PROPOSITION. This rescinding act is com­pletely fatal to all claims on the part of the companies and the northern purchasers.

To try the strength and equity of this act, let us first consider what was in fact conveyed by the granting act and the companies deeds.

NOTHING more can vest or pass by any convey­ance, than what the grantor owned or had a right to convey; therefore the fee-simple, though expressed in the deeds, did not pass; because the state did not [Page 93]own it. The right of possession, use or dominion could not pass; because the state had not even a claim to it. An assignment of any right under the British charters could not pass; for the lands des­cribed had never been altered nor affected since the creation of the world. No pretence under the old or new system of landed tenures, could reach these lands. It could not convey a right to buy the land; for this could only be given by the United States. It could not be a right to conquer the Indians; for this either in a state or an individual would have been treason against the union.

THE whole extract and essence of the granting act and the companies deeds was a simple, unresponsible declaration of the representatives of the sovereign people of Georgia, that the people after the date thereof would have no claim upon certain lands with­in their assumed limits.

THIS declaration, which ought long before to have been made to the United States was made to the companies for the price of half a million dollars, and instead of being couched in the narrow compass of a due-bill, was promulgated to the world with great legislative formality as a bona fide conveyance of the fee-simple of lands within their territory.

THE progress of this business from its rising to its zenith and thence its falling to its original nothing­ness have been sufficiently traced. But the people of Georgia, indignant at the granting act, have re­scinded this declaration, and such are the real con­tents of the granting act that this rescinding is fatal to the companies.

CONSIDERING the rescinding act in this point of view, what is the condition of the northern purcha­sers? They claim a right to purchase the lands, merely because the representatives of the state of Georgia declared that after the 7th of Jan. 1795, [Page 94]the state would not claim such a right; but after­wards in Feb. 1796, the people declared that they would claim such a right, and further declared that the companies, to whom this first declaration was made, might take their money again: but for you, who had been defrauded by these companies, they made no provision, and you have no means to com­pel the state to withdraw their claim.

Now suppose the best possible case for the pur­chasers, viz. that the state of Georgia owned the fee: yet these men, who are pursuing you for money, have it completely in their power to receive back the money from the treasury—to give up their deeds, and to ratify and confirm the act beyond all contro­versy: for the contract was only between the state and the companies—you are no parties to it. This can be done now, or at any time hereafter. The re­scinding act has left your claim wholly in the power of your tormentors, and has given them the tempta­tion of half a million dollars to exercise this power, and their past conduct has left you no room to doubt their disposition to do it.

SHEWING you this in the case of a fee, you will apprehend on what a slender thread your title is sus­pended, provided the granting act should happen to include any estate less than a fee.

'TIS true you are told by the books, that a fee al­ways vests in some one, and from thence may infer, that in the case proposed the fee would have been vested in you, so that no agreement between the state and the companies could be conclusive: but unfortu­nately the same law, which gives you this momenta­ry comfort, tells you that no fee can vest, where nei­ther party is in possession; provided, that any is in pos­session claiming and holding all others out, which was true in the present case. And unfortunately the last clause of this law applies to every kind of right [Page 95]or claim in real estate, and when you leave real estate the law leaves you; so that however you might con­sider your claim, it would be completely voidable by the act of the parties who made the contract.

THUS, separate from the strength and operation of the rescinding act in itself, and from all your feel­ings and reasonings about it, your claim is left whol­ly at the mercy of the companies, and this because you have not the actual fee simple, which they pre­tended to sell you.

THIS consideration, added to the worthlessness of your claim, presents, in a strong point of view, the vanity of all reliance on your purchases.

BEYOND this, by destroying the records of the ori­ginal deeds, and closing the records against after con­veyances, the rescinding act has put it in the power of any person, intermediately claiming the lands, to break a link in the chain of title, on which you may rely; this he may do by burning his deed or by con­veying to another and dating his deed anterior to yours. As you have no record, nor act of possession to evidence your title, and as the proof of such fraud would doubtless be out of your power, you see how easily your prospects might be cut off; and this merely by the existence of the rescinding act, without any reference to its merits.

BUT the actual strength and operation of this act is further discovered, in its having actually destroyed the marketable quality of the lands. This shews that the body of mankind, whatever they may think of its equity, really considers it fatal to your claim; for if they judged the rescinding act to be of no consequence, your lands would be of as much value as ever.

BUT the strength of this act is further discovered in its having withstood all the elements combined to defeat it, triumphant over all the passions, which a­gitate men disappointed in prospect of wealth, and [Page 96]equally above the fine spun sophisms of dealers in remnants of law. As the causes of its existence and object of it formed a combination wholly new, so the act is itself without a precedent, and standing thus alone, is firmly supported by the voice of the people, by the inherent sovereignty of the state, and by a train of argument, well calculated to enforce its e­quity and validity upon every unprejudiced mind.

THE very effects of the rescinding act, prove that the contents of the granting were weak; they also prove that the rescinding act possesses stamina of ex­istence stronger and more durable than its enemies have been willing to allow it. This act contains in itself forcible reasons why it was made; it does not descend to all the reasons which might have been of­fered —nor to any formal confutation of the argu­ments against it; but as these arguments have been assiduously and in some instances successfully used at the northward, it may be proper to try the strength of them.

THE first is, This rescinding act is wholly unprece­dented and unsupported by authorities, therefore good for nothing.

I ACCEDE to the premises; but deny the conclu­sion.—It is true that the British king did not rescind his patent to the earl of Warwick. Massachusetts did not rescind their grant of the Genessee country, nor Connecticut theirs of the Reserve. But suppose that either or all these sovereign powers had rescin­ded their grants, before the lands were obtained by the grantees, what remedy would the grantees have had? As there is no precedent of the case, there can be no precedent of a remedy, and those who use this argument, have never proceeded so far as to suggest even a plausible remedy in the present case. But it [Page 97]so happens, there is no precedent of the fraud, col­lusion, atrocious speculation and corruption, practised on a sovereign legislature, to render such an act ne­cessary, and where a new case occurs, its merits must be tried by the rules of reason and common sense.

THE novelty of the case was created by the fraud of the companies, and it should not be in their power to draw arguments, from this very novelty, against the rescinding act.—The best, which can be said of this argument is, that the very terms of the premises wholly foreclose any conclusion in favor of or against the rescinding act.

THE second argument is, that however the rescind­ing act might have operated, previous to any sales made by the companies: yet that it can have no effect on the northern purchasers; because they bought in open mar­ket at a fair price, ignorant of the collusion. I have al­ready suggested the effects which it has had, and the impracticability of remedy; but in direct answer to the argument, be it remarked, that if any right ex­isted, it belonged to the sovereign people of Geor­gia— that the collusion of representatives is not the collusion of the people, and that when those act be­yond their delegated powers, their acts are voidable by the people. But when they, under the influence of bribes, agree to cheat their constituents and these bribes are given by the grantees, the contract be­comes void on common law principles.

‘As the king's grants proceed chiefly from his own bounty, and his letters patent are records of a high nature, they ought to contain the ut­most truth and certainty, and have in all times been construed most favourably for the king contrary to the grants of common persons; and accordingly in a great variety of cases we find [Page 98]incertainty, misrecitals, false suggestions, and all such matters as shew that the king was deceived in his grant, held such reasons as have been suf­ficient to vitiate the grants. ^*’

EQUITY will relieve a man against a contract, en­tered into, when he was in a state of ebriety, pro­vided he were drawn into such debauch by the ma­nagement and contrivance of him, who gained the contract. ^†

IN the first quotations regarding the sovereign people, as standing in the place of the king, and their representatives as the king's ministers—the cases will apply, and the granting act would be void, on common law principles. On the last quotation, let the fraud be compared to the debauch, and equity will declare the granting act void. An exception taken under this argument is, that the property is now in bona fide purchasers, who are not partakers in the fraud:—but this exception is never admitted where a grant, deed, or contract is null and void in itself.

THIS dark work of legislation partook too much of the Ethiopian huc, and the conduct of the compa­nies too much of the Leopards spots, ever to bring a white and unspotted title, to the northern purchasers.

IN this case the state has, by a sovereign act, done no more, than what courts of law or equity would do in similar contracts between individuals.

THE third argument is, If the granting act was null and void in itself, there was no need of a rescinding act and that if it was not thus null and void, a rescinding act [Page 99]could not make it so:—therefore that the validity of the granting act ought to have been tried by courts.

IF Gunn and Co. had raised a military force, and with colours flying, drums beating, loaded artillery and all the imposing attitudes of hostile array, had procured this grant—and afterwards the state of Georgia had, by armed force, overpowered these in­vaders—and the assembly had afterwards convened and rescinded the grant, and outlawed Gunn & Co. would not all the world say they had done right— and that burning was good enough for an act thus obtained? All kings, all nations and sovereign states would do this, and the world would approve it; but their approbation would be founded on princi­ples broader and more enlarged than are contempla­ted in the books.

THE principles of the laws of nature and nations, including the laws of morality, take root deeper than the roots of society—the book decisions take root in a soil less deep than that of society—the sovereignty of the people is between them. Society is founded on first principles—Legislatures declare the opera­tion of those principles—Courts apply these decla­rations to all the variety of cases, which the weak­ness and wickedness of man present for their deci­sion. The sovereignty of the people never aliena­ted to its servants the judges of courts a right to judge of impositions on that sovereignty.

OF extremes of fraud or force this sovereign peo­ple will judge, lesser violations are left to courts.— Once adopt as a principle that in such cases, courts may decide over the heads of legislatures, and you disseize the people of all sovereignty and erect impe­ria in imperiis without end.

THE confusion of leaving a question of this kind to courts would be endless. Without books or prin­ciples [Page 100]to form their decisions, and without power to enforce them, the claimants would be led into im­mense expence without possible profit.

HAPPILY the question about the validity of the granting act has been decided by a power, from which there is no appeal; and the rescinding act has pub­lished this decision in terms, liable to no miscon­struction.

THE fourth argument is, That the rescinding act is an ex post facto law.

ALL this doctrine about ex post facto laws, are re­spects this case, is wholly irrelevant: for though it be law and reason, that no man shall be punished for the breach of a law passed after the commission of an act, and though no law of this description can alter the rights of individuals as respects each other: yet all this cannot apply to contracts between sovereign and subject; for in the first case parties exist which can be called into court and compelled to answer: here there is but one existing party—the other is be­yond the power of the court. It created the court, and in this creation never imparted to it a power to control itself in legislative measures.

THE term ex post facto law was derived from the immorality and inexpediency of such laws: but it wholly loses its name, where it loses its application; that is, when the after law is both moral and expe­dient, and when the power making the law is in ev­ery respect uncontrolable.

THIS argument therefore is weak for two import­ant reasons; one, that it cannot apply to the case: another, that if it might apply in theory, there is no court or power on earth, mighty enough to make the application in practice.

[Page 101] THE fifth argument is, That a grant is sacred and irreversible; therefore that the rescinding act cannot des­troy the force of the granting act.

IF the Georgia grant is sacred now, it would have been so, if the whole senate and house of representa­tives and governor had been bribed and if the land had been sold for five dollars, instead of half a mill­ion; but the fact is, nothing can make a grant sa­cred, but the sacred integrity of the contracting par­ties. ^* Nothing can make a grant irreversible, but a want of power in both parties to reverse it. In the present case was no sympton of integrity, and one of the contracting parties, having abundant power for the purpose, has actually reversed it. Hence equity and power have been united in proving, to the con­fusion of the Georgia companies and disappointment of the northern purchasers, that the granting act was neither sacred nor inviolable.

SUPPOSE the state had received for this land 800,000 dollars, the highest price offered, and the assembly had, without any corruption, or collusion, constitutionally, freely and with the full consent of their constituents, granted this land and had receiv­ed full pay for it and had afterwards, on any pre­tence, rescinded it and kept the money—all the world would have cried out shame! But what good would all this do to the suffering purchaser? What lawyer could point to him any mode of revesting him­self with a sole exclusive right to buy these lands? Tis beyond the power of human invention.

IF in such case the state had owned the fee and pos­session, and the individual had asserted and regained his right by force of arms—all the world might say, [Page 102]he had done well in opposing might to might, and in redressing an injury: But now in order to do this he must first violate the laws of nature and na­tions by extirpating the right owners; and they must expatriate every principle of decency and hon­esty, in attempting to vindicate by force, a claim founded in fraud and iniquity; for very different from the above case, in point of equity and morality, has been the conduct of the state of Georgia. By their rescinding act, while they have asserted the ma­jesty of a sovereign people, they have exercised all the equity of an individual, by forgiving the wrong and offering to refund the money.

THE condition of statu quo proposed by this act, though generally recognised among all nations, as a desideratum between contending parties is not at all to the humor of these colluders. It severs them forever from the prospect of immense wealth with­out labor, invention or honesty, which was the glo­rious boon in prospect.

HAD the state confiscated the purchase money, for the treachery practised against the sovereign people, more might have been said; but they have honora­bly offered it back to those who deposited it. Try them by the law of nations for this rescinding act and they will be honorably acquitted. Tried by the laws of nature, the state of Georgia would be ap­proved.

FROM all the maxims, which regulate sovereign states, the claimants fly to courts of inferior jurisdic­tion—courts highly respectable in their institution— highly capable of administering justice between man and man; but wholly inadequate, in delegated power, for a decision of this question; and in such courts, borrowing the mantles of more honest suitors, they practically avow their designs of plunder, and not content with having violated the principles of fair [Page 103]dealing in the first instance, would under the mask of law, pirate the world of the fair distinctions which sub­sist between honest and dishonest applicants for jus­tice.

CONTRACTS between kings and subjects, between sovereign states and individuals, stand on moral, not on legal principles.

THE high approbation, with which the rescinding act is now received by an impartial public, establishes its conformity to the laws of morality and of nature. If the advocates of this argument could have shewn that this grant was fairly and sacredly obtained, the public would have lamented that this sovereign pow­er had been immorally exercised: but the absolute necessity that sovereign power should in all govern­ments reside somewhere, has foreclosed all appeals in the present case.

THE sixth argument is, That the Indian right to part of the lands described in the granting act has been extinguished—therefore that the rescinding act could not at best reach the whole.

To this my remarks on the nullity of sale (nei­ther partly in possession) furnish a sufficient answer.

THE seventh argument is, That the companies are still possessed of the original deeds of Governor Matthews —therefore that the rescinding act, by destroying the re­cords, cannot have destroyed the title.

BUT deeds are only evidences of title, and like other evidences, they may speak truth or falshood —theirs in conveying the fee violate the truth.— Deeds may be good or bad—valid or void, accord­ing [Page 104]to the power of the contracting parties, or the integrity and legality of their contracts. These deeds were given by a party, unable to contract: they were founded on fraud, and the subject of them was unconstitutional and illegal. Deeds create no fee-simple, nor any other quantity of estate in lands. The estate must first exist: but it did not exist in the present case. Your original deeds from the Go­vernor can answer no other purpose, than as a stan­ding memorial, that there was a time, when certain representatives of a free people were guilty of most abandoned treachery against their constituents, and when there was a class of men, capable of improving the basest of means for the vilest of ends:—but the rescinding act is to remain as an illustrious memori­al of the everlasting abhorrence with which their treachery and your corruption are to be regarded by this and future generations.

THE foregoing and similar arguments have been proposed by the sellers in every form in order to give currency to a second edition of delusions, which may be truly said to be much enlarged by the authors. Every principle of law and equity has been put on the rack to compel a disclosure of something in favor of the granting act. The books and their conserva­tors have been put in requisition. Cases have been nicely fashioned to the fancy of employers, and the mighty quotient has been that the rescinding act is good for nothing!

AMIDST the preparations for hostility, some of the northern purchasers have been discomfited—some settlements have been effected; but even these have been magnified and multiplied, for the purpose of drawing others to accommodation. It was not e­nough, that wretches were employed at the north­ward [Page 105]under the mask of purchasers to draw in their neighbours; but pretences that these very impos­tors have settled, have been since improved to draw those very neigbours to a settlement.

A THOROUGH detail of the frauds practised in the first, second and last stages of this business would be voluminous, and in the present case of no other use than to add a new chapter to the volume of argu­ments which prove to what a depth of degradation the predominant lust of wealth is able to sink the character of man, and to what a boundless field of wickedness, those men are introduced who leave the path of morals and integrity, and abandon their duty as men and members of society. ^*

BUT a certain portion of the fraud shall be pre­sented, from the following affidavits preserved on the journals of the house.

[Page 119] THE measures taken to develope this transaction, were rational and deliberate. By the month of May, 1795, the minds of the people were expressed by pe­titions, to the convention, which produced the fol­lowing ordinance.

[Page 121] THE depositions here presented need no other commentary, than the able and practical one made on them by the rescinding act. I have endeavoured to notice summarily the arguments against this act in one or another part of these numbers. They have been of every description. Whatever could opiate the reflections or brighten the prospects of the Georgia sellers has been improved; but no one has met the rescinding act at the point, where it concentres all its strength; which is in THE SOVEREIGNTY OF AN IN­DEPENDENT STATE. This stands above all the ar­guments opposed to it, and will continue so to do, till some one will find a power mighty enough to control it.

THE rescinding act of the United States, in respect to their promise to pay Spanish milled dollars for continental bills, and the acts of the several states, which rescinded their plighted faith for the payment of their notes and bills, were never called in question; although these acts involved property to the amount of millions, and affected subjects, whose meritorious services and honest earnings of the bills or notes were never doubted. This rescinding resulted from the necessity of the case, and became irresistible BY REA­SON OF THE VERY SOVEREIGNTY, WHICH PASSED IT. But now, where necessity and equity were com­bined with this sovereignty, a rescinding act must be­come instantly void—because purchasers of members rights are in danger of suffering. The first rescinding acts contemplated bills, purporting to be equal to Spanish dollars. The last operated on deeds pur­porting to convey fee simples. The bills and the deeds were equally deceitful: yet the sufferer by the first is left to lament that he trusted to a power beyond his control; while the purchasers of members rights are to bid defiance to the power which has already crush­ed them.

[Page 122] THIS vain gasconading, these nice distinctions re­sult not from reason and nature; not from prece­dents and principles; but from judgments perverted by money and from the miserable items of a fee-table.

NOT being so well versed in the indexes of law books as the opposers of the rescinding act, I beg leave to close this number with a fable, the due ap­plication of which will render further discussion of the merits of this act unnecessary.

ONCE on a time, a lion and a fox entered into a treaty of mutual convenants; but the fox had craftily drawn the lion into articles, wholly foreign from the object of the trea­ty, and very inconvenient for the lion to perform. The lion discovering the treachery determined on redress when a fair opportunity should present. Soon after, Reynard took the liberty of breaking a very essential article; upon which the lion, without ceremony, put him to death.

THE foxes assembled and complaining bitterly of cruelty and tyranny, determined, 1st. That the lion had no right to put Reynard to death. 2d. That the question about the breach of treaty ought to have been tried by a court of foxes. And 3d. That as the lion had no right to kill Reynard, and as the question ought to have been tried, therefore Reynard was not dead. Able counsellors were named to make out the case, and report their opinion. After much consultation they reported as follows:

• 1st. SUPPOSE Reynard was now alive—and suppose a lion was no stronger than a fox—then he could not kill a fox; therefore Reynard is still alive.
• 2d. SUPPOSE a lion never before killed a fox for breach of treaty; then the lion had nothing to justify him in doing it; therefore he has not done it, and therefore Reynard is still alive.
• 3d. As Reynard had, after making the treaty, lived for a considerable time—and as his breath had vested in [Page 123]him; therefore the lion could not take it away and there­fore Reynard is certainly alive. All which was hum­bly submitted.

As the burden of the business was Reynard's alive, and as the whole assembly of foxes wished to believe it, the report was unanimously adopted; and the counsellors were re-appointed to devise and report ways and means for carrying this judgment into effect.

THIS was an arduous task; but they at length reported that as this lion was very powerful aad lawless, it would be best to wait for his decease, and perhaps his successor might be as small and weak as a mouse.

To this it was objected, that as the life of a fox was far short of that of a lion, the present generation would not have the honor of carrying their judgment into effect. They therefore appointed a committee to wait on the lion with a copy of their judgment and to demand his assent to their propositions. This being delivered, the monarch of the forest replied— ‘ Your reasoning may be very good; if you will appoint one of your number to enforce it upon me, I will receive him in the anti-chamber where your Reynard-alive is deposited; and further tell your as­sembly, that when foxes deal with lions they must deal with good faith.’

THAT Reynard was actually dead had been a sore thing at the bottom of all their measures: but good reasoning had hitherto kept them up. Now this severe answer returned to the company produced a sadness, which led to the following humbling resolves:

• 1st. IN FUTURE NEVER TO BE TOO CUNNING FOR OUR OWN INTEREST.
• 2d. NEVER TO MAKE TREATIES WITH LIONS.