THE Opinion of counsel is required on the following points.

• I. Whether any claims of the United States can affect the purchases of land made from the state of Georgia in 1795, by the Upper Missisippi and Georgia Companies or either of them?
• II. Whether those purchases can be affected by the Act of the Georgia legislature passed Febru­ary 3, 1796, and commonly called the Repeal­ing Act?

In answering the first of these questions it will be proper to consider the claims of the United States under two points of view; first as they re­spect the state of Georgia itself; and secondly, as they respect the purchasers under the state. For, though in general, purchasers stand, as to all legal intents, in the same situation with the seller, there may be particular circumstances which will create a wide difference between them. It will be proper to enquire whether these lands or any part of them belonged to the United States at the time of the [Page 2]sale? and, in that case, whether it was attended or preceded by any conduct on their part, which will render it valid against them in the eye of the law?

In discussing the question "Whether any part of these lands belonged to the United States at the time of the sale" we must carry back our at­tention to the first discovery of North-America, and take a review of the various public acts by which the rights of soil and jurisdiction, to that part of it where the lands in question lie, have been affected from that period to the present time. Such other transactions as it may be necessary to recur to in other parts of the investigation, though they have no immediate relation to this point, will, for the sake of perspicuity, be noticed in the order in which they occurred.

It was a principle admitted by all the European nations in the establishment and regulation of their American colonies, that prior discovery, accom­panied by actual occupation, and, in some cases, without it, vested the right of soil and jurisdiction. Spain thus acquired her extensive dominions in South-America; and by the same side she laid claim to Florida in the southern parts of the North-American continent. England, also, by virtue of discoveries made under her flag in the reign of Henry VII. claimed the whole extent of North-America from Florida to Hudson's bay. The boundary between her discoveries and Florida re­mained for a long time uncertain, and was fre­quently the subject of dispute between the two crowns. She claimed, however, as far south as the latitude twenty-nine; and Spain at length ce­ded Florida to her, which put an end to the con­tention.

England made settlements, at a very early pe­riod, in the northern and middle parts of this ex­tensive [Page 3]region, and erected governments which now compose the states from Virginia to New-Hampshire, inclusive. These governments were of two kinds, royal and proprietary. In the former the right of soil and jurisdiction remained in the crown; and their boundaries, though described by its letters patent, were subject to alteration at its pleasure: for, as it possessed the rights of soil and government, and delegated them to its gover­nors, during pleasure, it might dispose of them in what manner and to whom it thought fit, might al­ter, extend, or abridge the delegation as its incli­nation or policy might dictate. In the latter, the proprietary governments, the right of soil as well jurisdiction was vested in the proprietors. Their charters were in the nature of grants, and their li­mits being fixed by these charters could not be al­tered but by their own consent. This distinction is particularly noticed here, because in the pro­gress of the discussion it will appear to be of very great importance.

Most of the governments were at first proprie­tary; but, in progress of time, the greater part of them, either by the forfeiture or surrender of the charters, became royal.

The first of these charters, under which any set­tlement took place, was given by Queen Elizabeth to Sir Walter Raleigh in the year 1584 ^*. Like the previous charters from her and Henry VII. to Cabot, Sir Humphrey Gilbert and others ^†, it was merely a commission to discover any countries not occupied by Christian people, to take possession of them, and form settlements under the allegiance of the crown of England. It also prohibited any other persons from settling within two hundred [Page 4]miles of any place where he should [...], "within six years." Under this charter he made two settlements: one south of the Chesa­peake, composed of about one hundred persons, who arrived in June 1585, and returned to Eng­land in the June following: the other near the mouth of James' river, and consisting of about the same number of settlers, who arrived in the year 1587, and continued there. In the title of the charter it is said that it shall continue in force for six years, and no more; but in the body of it there is no limitation. In the year 1603 ^*, how­ever, it was forfeited by the attainder of sir Wal­ter Raleigh, for treason, and the right re-vested in the crown.

In the year 1606, James I. by his letters pa­tent dated April 10 ^†, gave permission to two com­panies to form settlements on any part of the coast of North-America, between latitudes 34 and 45. These companies were denominated the first and second colonies of Virginia: The first was to make its settlements between 34 and 41 degrees of lati­tude, the second between 38 and 45. Neither was to settle within two hundred miles of any place previously settled by the other. Each was to possess all the lands along the coast fifty miles in both directions from the place of its first settle­ment, one hundred miles back into the country, and all the islands within one hundred miles of the coast. A council was appointed for the go­vernment of each colony, and it was provided that all the lands contained within the above mention­ed limits should, on petition to the crown, be grant­ed to such persons as the respective councils should recommend.

[Page 5] It does not appear that any such grants were ever made; but James I. by letters patent, dated May 23, 1609 ^*, separated the first colony from the second, and, on the petition of the persons composing it, erected them and a number of o­thers into a corporation under the name of "The treasurer and a company of adventurers and plan­ters of the city of London, for the first colony of Virginia." All the lands along the coast, two hundred miles south, and an equal distance north, of point Comfort, and extending west to the South-Sea, with the islands within one Hundred miles of the coast, were granted to this company, commonly called the London company, and their successors, in fee simple; in trust however, to be distributed among settlers: and the powers of go­vernment were vested in two councils, one in Eng­land, and one in America.

Point Comfort being about latitude 36, 30, the limits of this charter must have extended south to about latitude 33. It is not easy to determine whether the government erected by it ought to be considered as royal or proprietary; but it has more the appearance of the former.

On the 12, of March 1612 ^†, James I. granted another charter to the London company, which confirms the former, and adds to their territories all the islands within 300 leagues of the lands for­merly granted to them, and between the 30, and 41, degrees of latitude.

The company continued to exercise the powers of government, and dispose of the rights of soil, within the limits allotted to them, till about the year 1624, when the affairs of the colony appear­ing to be badly conducted, their charters were [Page 6]forfeited by quo warranto ^*, and the government with all the rights of soil and jurisdiction taken into the hands of the crown. By this resumption Virginia became, if it were not so before, a royal government; and its boundaries became liable to abridgment or alteration of the pleasure of the monarch.

The rights of soil and jurisdiction in all the lands south of the Chesapeake, not actually appropri­ated being thus re-vested in the crown, king Charles I. made a grant to sir Robert Heath, his attorney general, extending from the 30, to the 36, degree of latitude north ^†. This grant was ever afterwards considered as void, but whether by surrender, nor user, or in what other manner, does not appear.

The next grant of this country was by Charles II. to lord Clarendon and others bearing date March 24, 1662. It included "all that territo­ry or tract of ground situate, lying and being, within his said majesty's dominions in America, extending from the north end of the island called Lucker island, which lyeth in the northern Vir­ginia seas, and within six and thirty degrees of the northern latitude, and to the west as far as the South-Seas, and so southerly as far as the river St. Matthias which bordereth upon the coast of Flo­rida, and within one-and-thirty degrees of nor­thern latitude, and so within a direct line as far as the South-Seas aforesaid." These grantees were afterwards called "Lords Proprietors," and the country contained within their boundaries was erected by the charter into a province, under the name of "Carolina." Extensive immunities were conferred on settlers, and the rights of soil and [Page 7]government, were vested in the proprietors in fee simple.

By another charter from Charles II. bearing date June 30, 1664, the former was confirmed, and its limits extended from latitude 36, 30 to latitude 29 inclusive, and from those points due west to the South-Sea. ^*

On the 25, of July 1726, the lords proprietors by deed duly executed, surrendered to the crown all their rights under these charters ^†, lord Carteret alone one of the number, retained his share, and it was afterwards separately alloted to him in the northern parts of the province. The surrender was accepted and confirmed by act of parliament, and by virtue of it Carolina became a royal go­vernment. It was afterwards divided into two provinces, called North and South-Carolina, by a line beginning at the north end of long Bay, and running thence north-west to the latitude 35, and thence due west to the South-Sea; lord Carteret, better known by the name of lord Granville, had his part laid off in North-Carolina

George II. by letters patent bearing date on the 9, of June 1732 ^‡, erected lord Dereival James Og­lethorpe and others, into a corporation under the title of the ‘Trustees for establishing the colony of Georgia in America,’ and granted to them and their successors, in trust for future settlers, all those lands countries and territories, situate, lying and being, in that part of South-Carolina in Ame­rica, which lies from the northern stream of a ri­ver, there commonly called the Savannah, all along the sea coast to the southward unto the most southern stream of a certain other great water or river called the Alatamaha, and westward from [Page 8]the heads of the said river, respecttively, in direct lines to the South Seas. This country was erect­ed into a province called "Georgia," and power was given to the trustees for twenty-one years to frame laws and regulations for its government; after which all the rights of soil and jurisdiction were to vest in the crown.

Under this charter Oglethorpe took possession of the country for the trustees and made several settlements: and in the year 1752, the trustees by deed duly executed, surrendered their charter to the crown ^*, Georgia therefrom bcame a royal government.

By the treaty of Paris in 1763, Spain ceded to Great-Britain, Florida, Pensacola, and, in general, all that she held in North-America east and south­east of the river Mississippi: and a line drawn down that river from its source to the séa, was establish­ed as the western boundary of the British domi­nions ^†.

Soon after this cession the British government, by a proclamation for the regulation of its colo­nies being dated October 7, 1763, errcted Florida into two governments called East and West Florida. They were divided from each other by the Ape­latchicola river; and the latter was bounded by the gulph of Mexico on the south, on the west by lakes Pontchartrain and Maurepas, and the river Mississippi, and on the north by a line drawn from that part of the river Mississippi which is intersect­ed by latitude 31, due east to the Apilachicola. The northern boundary of East Florida was a line drawn from the confluence of the Chatahocchee and Flint rivers, where they form the Apilachi­cola, [Page 9]to the head of the St. Mary's, and down it to the sea.

Disputes in the mean time having arisen be­tween the governments of South-Carolina and Georgia, about the lands, lying between the Ala­tamoha and St. Mary's, they were, by this pro­clamation, annexed to Georgia ^*, whose southern boundary, stretching only to the Alatamoha by its original charter, was thus extended to the ri­ver St. Mary's.

The proclamation also contains a clause, "Re­serving under the sovereignty, protection and domi­nion of the crown, for the use of the Indians, all the land and territories not included within the li­mits of the governments thereby erected, or with­in the limits of the territory granted to the Hud­sons Bay company; as also all the lands and territo­ries lying to the westward of the sources of the rivers which fall into the sea from the west and north-west," and it forbids "the governors of all the colonies to grant warrants of survey, or pass patents, for any lands beyond the heads of these rivers, till the further pleasure of the crown should be known."

When the first British governor took possession of West Florida he found its limits to the north so contracted as to cut him off from the most fertile and healthy lands, and even to exclude from his province some very considerable settlements, which had been formed under it, and made part of it, while subject to Spanish government. He made a representation of these circumstances to the crown ^†. It was referred to the board of trade and plantations; and by their advice the province was extended to the north, "By a line drawn from the north of the Yazoo river where it unites [Page 10]with the Mississippi, due east to the Apilachicola." This extension, which took place before the year 1770, was not made by proclamation, but by in­structions to the governors of that province, and their commissions ^*. They went on to exercise ju­risdiction and grant lands in the country thus an­next to their government, till it was ceded to the United States by Great-Britain, at the peace of 1783.

When the British colonies, including South-Carolina and Georgia, dissolved their connection with the mother country in the year 1776, and erected themselves into independent states, they agreed that each should hold by its former limits; that each state should possess the same extent of territory that had belonged to it while a colony. This indeed was not readily contented to: for as the limits of several colonies, as Massachusetts, Connecticut, New-York, Pennsylvania, Virginia, North-Carolina, South-Carolina and Georgia, in­cluded a great extent of unsettled country, while others, as New-Hampshire, Rhode-Island, Jersey, Delaware, and Maryland, possessed little or none, the latter contended that these unsettled lands should be considered as a common property among all the states, and appropriated for their mutual benefit; and some of them, particularly Mary­land, refused to accede to the union, until some of those states which possessed the most extensive limits, should relinquish a part of their claims for this purpose. This was at length done; Massa­chusetts, Connecticut, New-York, and Virginia, made relinquishments, retaining however very considerable portions of the land in question. The [Page 11]articles of confederation were then ratified, leaving all those states which had made no relinquishment in the quiet possession of the whole territory com­prized within their ancient limits. Of this number was Georgia; which was so far from relinquishing, that on February 7, 1783 she passed an act asserting that her jurisdiction and right of soil extended "over all the country between the Missisippi, the Atlantic, the southern boundary of the United States as established by the treaty of peace, and the Southern boundary of North-Carolina.

By another act passed February 7, 1785 she pro­ceeded to exercise the rights which she had thus asserted. It was thereby enacted "That all the country contained within a line to be drawn down the Mississippi from where it receives the Yazoo, till it intersects the 31st degree of North latitude, then due east as far as the lands might be found to reach which had at any time been relinquished by the In­dians, then along the line of relinquishment to the river Yazoo, and down it to its mouth, should be erected into a county called Bourbon, and that when the land-office should be opened, all persons previously settled there should have the right of pre­emption at one fourth of a dollar per acre."

Under this act, commonly called the Bourbon county act, no settlements were ever made. The relinquishment of land which is spoken of in it took place at Mobile in May 1777, by virtue of a treaty between the Choctaw nation, to whom that country then belonged, and the British superinten­dant of Indian affairs, and was confirmed by the treaty between those Indians and the United States held at Hopewell on the 3d of January 1786. It extended from the mouth of the Yazoo 110 miles [Page 12]down the Missisippi; at the upper end it was 15, at the lower 60 miles broad.

About the same time a dispute arose between the states of South-Carolina and Georgia respecting their boundaries. South-Carolina contended that as the original boundaries of Georgia were the ri­vers Savannah and Alatahama, and lines drawn due west from their sources to the Mississippi, all the land lying south of the Alatamaha and of a line drawn due west from its source to the Missisippi, as far as to the northern boundary of the Floridas, con­tinued to be a part of the province of South Caro­lina, out of which Georgia was taken: and that when the British crown, by its proclamation of Oc­tober 7, 1763, annexed to Georgia, "all the lands lying between the rivers Alatemaha and St. Ma­ry's" it meant only the lands actually between those rivers below their sources, and not such as lay above those sources, and between lines drawn from them respectively west to the Missisippi; which tracts of country, of course, even after the pro­clamation, still continued a part of South Carolina. Georgia, on the contrary, maintained that when the proclamation annexed to its governmeet "all the lands lying between the rivers Alatamaha and St. Mary's it meant to include not merely the tract of country which lay between those rivers, below their sources, but also the whole territory held by the British crown between the north­ern boundaries of the Floridas, as established by the same proclamation, and the ancient south­ern line of Georgia. This dispute was referred to congress under the articles of confederation by a petition from South-Carolina ^*. A court was ap­pointed, and a day fixed for a hearing between the two states. But they afterwards agreed to with­draw [Page 13]the petition and settle the matter by negociation ^*. Their commissioners met at Beaufort in South-Ca­rolina for this purpose and on the 24th of April, 1787, agreed on a convention by which that state relinquished the claim. On the 29th of February 1788 this convention was ratified by an act of the legislature. It had previously been laid before con­gress and filed among the official papers of the U­nited states ^†.

On the 21st of December 1789, the legislature of Georgia passed an act for selling all this country from the mouth of Coles creek, which is a little a­bove the Natches, to latitude 35, and from the Mississippi to the Donbigby. Two companies were to be the purchasers, one called the South-Caroli­na, the other the Virginia Yazoo company; and they were allowed a pre-emption of two years, on their making the stipulated payments, within which periods they were to receive grants. But a dis­pute having arisen between them and the state about the mode of payment, the pre-emption expired without payments having actually been made, and no grants were passed ^‡.

On the 7th of December 1793 a representation was presented to the court of Spain on the part of our government, in which the dispute between us and that power respecting boundary was stated, and our claim supported. This representation in­sists on the latitude 31. as the Southern boundary of Georgia, and rests our title to the disputed terri­tory which lay above that latitude, entirely on the right of that state ^‖. Indeed it is of importance to remark here, that in the whole progress of this dispute, which being definitively settled by the late [Page 14]treaty between the United States and Spain, need not now be discussed, our government held up the right of the state of Georgia to the territory above latitude 31, as altogether indisputable, and made that right the sole foundation of its own preten­sions ^*.

On the seventh of January 1795, the legislature of Georgia passed an act for selling parts of the territory on the Mississippi, above latitude 31, to se­veral companies, one of which was called the Up­per Mississippi, and another the Georgia company. These are the companies whose rights are the sub­ject of the present investigation. The land allotted to the first was directed to be bounded by a line "Beginning at the Mississippi river where the northern boundary line of this state (Georgia) strikes the same: thence along the said boundary line due east to the Tenessee river; thence along the said Tenessee river to the mouth of Bear Creek'; thence up Bear Creek, to where the parrallel of latitude twenty-five British statute miles south of the northern boundary aforesaid strikes the same; thence along the said last mentioned parrallel of latitude, across Tombigby or twenty mile creek, due west to the Mississippi river; thence up the middle of the said river to the beginning." The boundaries of the Georgia company were a line, "beginning on the Mobile Bay, where the latitude 31, degrees north of the equator intersects the same, and running up the said Bay to the mouth of the lake Tensaw; thence up the said lake Ten­saw to the. Alabama river, including currys and all other islands therein; thence up the Alabama to the junction of the Coosa and Danfuskee rivers; [Page 15]thence up the Coosa river, above the big shoals, to where it intersects the latitude 34 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, 40;" "thence a due east course to the Dunbigby, thence down the middle of the Dunbigby to its junction with the Alabama; thence down the middle of the said river to Mobile Bay; and thence down the Mobile Bay to the place of beginning."

It was provided that the companies should each make a certain deposit of money, on account of the purchase money of the lands, in the treasury of the state; and that on their producing receipts from the treasurer for these deposits, the govern­or should give them grants, taking at the same time mortgages of the lands to secure the re­maining payments, which were to be made on or before the first of November following. In case of failure in these payments, the mortgages were to be instantly foreclosed, the first payments to be for­feited, and the grants to become void. It was also provided "That the lands to be conveyed by vir­tue of the act should be free from taxation till the inhabitants of them should come to be represent­ed in the legislature of the state ^*.

The deposits were made accordingly, and the grants passed in pursuance of the act. Before the first of November, the final payments were completed, and the mortgages taken up. The companies afterwards proceeded to sell parts of this land to various per­sons in New-York, Massachusetts, South-Caroli­na, and elsewhere, for valuable considerations.

It must be remarked that previous to this act, the various companies had made formal proposals [Page 16]to the legislature for the purchase of the lands; which were accepted and a bill passed thro' both houses accordingly. But the governor, judging these terms not sufficiently advantageous to the state, refused his assent to the bill, and stated his objections at large. Another bill was immediately framed so as to obviate the most material of these objections. It was passed, and received his sanc­tion ^*.

The whole sum of money paid into the treasury of Georgia, on account of these purchases, was five hundred thousand dollars. Of this sum one hundred thousand dollars were appropriated by laws of the state distinct from the abovementioned act, and persuant to those appropriations were ac­tually expended in the course of the year 1795 ^†.

On the 13, of February 1796, the repealing act was passed. This act however, makes no mention of repealing that of January 7, 1795, but after stating various objections against it, declares that it was originally void, and directs such part of the money paid in under it as then remained in the treasury, to be re-funded to the purchasers, provided they should apply for it in the course of eight months; otherwise to be forfeited to the state, and in the mean time to remain in the trea­sury at their risk and expence. No provision is made for the reimbursement of that part which had been expended for the use of the state ^‡. In this situation the affairs now remains.

From this view of the subject it seems sufficient­ly clear that no part of this country, above a line drawn due east from the mouth of the Yazoo to the Apalachicola, belonged to the United States, [Page 17]at the time of the sale. This it is believed will appear, in a satisfactory manner, from an atten­tive examination of their claim, under all the points of view in which it seems capable of being presented.

There are but three foundations on which the claims of the United States, in this country can rest.

In the first place it may be contended, that those clauses in the proclamation of 1763, by which the sale and settlement of land in the colo­nies were restricted to the heads of the rivers fal­ling into the Atlantic, from the west north-west, did in fact curtail the extent of the colonies, and reduce them from the Mississippi to a line drawn from north-east to south-west, thro' the heads of those rivers: and that this line having thus become their western boundary, all the lands beyond it must be considered as waste territories of the crown, not subject to any colonial jurisdiction; in which case they must have been vested in the United States by the cession from Great-Britain in the treaty of peace.

In order to decide how far this principle is well-founded; it will be proper to advert to the words of the proclamation itself; to the manner in which the British government acted under it before the revolution: and to the construction which it has received from the several states, and the govern­ment of the United States, since they became in­dependant.

From a careful review of the proclamation it­self, and a comparison of the various parts with each other, it seems evident that the clauses in question were intended, not as a restriction of the territorial limits of the colonies, but an instruc­tion to the governors respecting the time, place, and manner, of granting lands and making settlements.

[Page 18] The proclamation appears to have had five ob­jects in view. 1. To erect certain new govern­ments composed of the territories which Great-Britain had recently acquired by her treaties of peace, with France and Spain. 2. To annex cer­tain additional territories to some of the govern­ments, then existing. 3. To reward the land and naval forces of Britain, which had served in Ame­rica during the war, by an allotment of land in the colonies. 4. To protect the Indians in the safe and quiet possession of such lands as it was thought proper to reserve for their use and: 5. To regulate trade between them and the colonists. There is no hint of an intention to restrict the li­mits of the colonies by a line drawn thro' the heads of the rivers, or in any other manner. Had that been the intention of the British government, it would probably have been expressly declared; it having always been its practice to make alterations in the boundaries of its provinces in a very express and solemn manner, and usually in consequence of representations from the board of trade and plantations. This was the case in the extension of Georgia to the river St. Mary's, by this very proclamation, and of West Florida, to the mouth of the Yazoo afterwards; both which took place in consequence of recommendations from the board of trade ^*. It being intended also to extend the governments of Novia Scotia, and Newfound­land, the extensions were made by this proclama­tion in the most express and formal manner. It does not therefore seem in the least degree proba­ble, that so important a measure as the cutting off one half of all the colonies, those at least which were royal governments, if intended, should have [Page 19]been left to mere implication; to expressions, which even taken singly, many bear a very dif­ferent import.

The clauses which contain those expressions, are confined to the fourth object of the proclamation, which they appear to have had solely in view, viz. "To protect the Indians, in the, safe and quiet possession of such lands as it was thought proper to reserve for their use." They are introduced by a preamble, which states, "That it was just and reasonable, and essential to the interests and secu­rity of the British government and its colonies, that the several nations or tribes of Indians with whom it was connected, and who lived under its protec­tion, should not be disturbed or molested in the possession of such parts of its dominions and terri­tories, as not having been ceded to, or purchas­ed by it, were reserved to them or any of them, as their hunting grounds." In order to prevent this disturbance and molestation, various measures, are adopted. First the governors of Quebec, East Flori­da, and West Florida, the three new governments, are forbidden to grant any warrants of survey, or patents for lands, beyond the bounds of their re­spective governments." Secondly the governors of the other colonies are forbidden, "For the pre­sent and until the further pleasure of the crown should be known, to grant warrants of survey or pass pa­tents for any lands beyond the heads or sources of any of the rivers, which fall into the Atlantic ocean, from the west, or north-west; or upon any lands, which not having been ceded to, or purchased by the crown, were reserved to the Indians or any of them." Thirdly all the lands not included within the limits of the three new governments, or of the Hadsons Bay Company; and "all the lands and territories lying to the westward of the sources of [Page 20]the rivers, which fall into the sea from the west and north-west," were declared to be reserved, for the present, under the sovereignty, protection, and dominion of the crown, for the use of the Indians. And all persons were forbidden from making any purchases or settlements, or taking possession of any lands within those reservations. Fourthly, all per­sons, who, either wilfully or inadvertently, had seated themselves upon any of the land so reserv­ed, or upon any other land which, not having been ceded to or purchased by the crown, were still re­served for the Indians, were ordered immediately to remove. And fifthly, it was provided that in future "no private person should presume to make any purchase from the Indians of any lands reserv­ed to them within those parts of the colonies where the crown had allowed settlement, but that if the Indi­ans should at any time be inclined to sell such lands they should be purchased only for the crown and in its name, at some public meeting of the Indians held for that purpose, by the governor of the co­lony respectively within which they lay. And in case they should lie within the limits of any pro­prietaries, then conformable to such instructions as the crown or the proprietaries should give."

On these regulations it is observable, in the first place, that they are all parts of a system the avow­ed object and scope of which was to protect the In­dians, not to alter or abridge the limits of colo­nies. To this object all of them were important; nor was that which respected the lands west of the heads of the rivers less so than any of the others. As those lands lay at a great distance from the set­tled parts of the colonies, they were beyond the reach of protection from the colonial governments; and it was therefore important that they should, while reserved for the Indians, be taken under the [Page 21]immediate protection of the crown, which possess­ing a military force upon the frontiers could more readily and effectually repel those inroads and in­croachments which it was the object of this system to prevent. The lands below the sources of the rivers on the contrary, being nearer to the seats of the colonial governments, might derive the necessa­ry protection from that source.

As to the terms "sovereignty and dominion of the crown" which are applied to the lands above the heads of the rivers, they mean nothing; for all parts of the colonies were equally under the sov­reignty and dominion of the crown, the proprieta­ry governments excepted. Even they were so to many intents, and where they were exempted from sovereignty by their charters, it was not in the power of the crown to bring them under it again by a proclamation.

It is to be remarked, in the second place, that this "sovereignty, protection, and dominion" were only to be "for the present" and while the lands were "reserved for the use of the Indians." It was therefore a temporary regulation; not a per­manent change in the limits of a province, and was to cease as soon as the Indians should think fit to relinquish the lands, and the crown to permit the settlement of them. They were then to be under the government of that colony within whose limits they lay; to form part of it as before.

The same remark is applicable to the prohibition against granting warrants or patents for lands a­bove the heads of the rivers. It was only for the present" that they were prohibited: which shows that the prohibition was a temporary regulation on­ly, the lands still continuing a part of the colonies respectively to which they belonged before, and the governors of which, when the prohibition should [Page 22]be removed, would go on to grant the lands as formerly.

It is remarkable in the third place, that the pro­clamation speaks of "lands reserved for the Indi­ans within those parts of the colonies where the crown had thought proper to allow settlement" and those lands whenever the Indians should be dispos­ed to sell them, were to be purchased by the go­vernors in the name of the crown and for its use. Settlements were therefore permitted in parts of the colonies where the lands had been reserved for the Indians! This could apply only to lands be­low the heads of the rivers which had not been purchased or ceded; for above the heads of the rivers settlement was absolutely prohibited; and it proves that "to reserve lands far the Indians," did not take them out of the limits of the colony. There were also parts of the colonies where settlement was forbidden. This could apply only to the lands above the heads of the rivers; for below them, set­tlement was permitted, provided the land was pre­viously purchased from the Indians. Consequent­ly the lands above the heads of the rivers, though reserved for the Indians under the special protec­tion of the crown, and forbidden to be settled without its express license, were nevertheless con­sidered as "parts of the colonies," within whose former limits they lay.

The difference made by the proclamation be­tween the lands above, and those below the heads of the rivers, seems to be this, that both continu­ing to be part of the colonies, the latter might be settled whenever they could be purchased from the Indians conformably the established regula­tions: whereas the former, however willing the Indians might be, could not be settled or purchased without the express permission of the crown: the [Page 23]reasons of which distinction have been hinted at above, and indeed are sufficiently obvious.

It is to be observed in the last place, that these provisions extend to all the colonies, both royal and proprietary: some of which last description, particularly Pennsylvania, possessed extensive terri­tories beyond the heads of the rivers, which fall into the Atlantic from the west and north-west. Although the crown might, and frequently did, execute a general superintending power over the proprietary governments, as well as its other colo­nies might regulate their trade, protect the Indians, and prescribe the manner in which lands should be purchased or settled; it certainly neither had, or, claimed a right to alter, much less curtail their limits. This is evident from the whole tenor of its conduct, respecting the colonies, as well as from the nature of the proprietary charters them­selves; which being in the nature of grants invest­ed the proprietors with the right of soil. This right the crown could no more take from them then it could deprive indiviuals of any other pro­perty which they possessed and accordingly we have seen that it never meddled with the Virginia ter­ritory until the company's charter had been legal­ly vacated by a quo warranto. Nor was it till af­ter the council of Plymouth ^*, the lords proprietors of Carolina, and the trustees of Georgia, had re­spectively surrendered their charters, that the crown proceeded to make any disposition of their territories. It can hardly be presumed that it would so suddenly have departed from its constant maxims of conduct, and from the known princi­ples of its laws, as to attempt regulations by which the proprietary government of Pennsylvania would have been deprived at once of nearly half its ter­ritories. [Page 24]Yet this must have been the effect of the clauses in question had they been considered as a restriction of limits, rather than temporary instruc­tion to the governors.

It is moreover an invarible rule in the exposi­tion of legal acts, that in case of ambiguity any construction by which they can be rendered consis­tent with right is to be preferred. But to consider these clauses as a restriction of boundary, would render them directly repugnant to the plain and acknowledged rights of the proprietary govern­ments. Whereas to regard them merely as in­structions to the governors respecting the time and manner of making settlements, will reconcile them equally to the rights of the proprietors and of the crown: and this is the intention with which the proclamation, considered in itself, and taken un­der all these points of view, appears to have been made

The construction thus obviously deducible from the words and tenor of the instrument itself, is strongly supported by the conduct of the British government, before the revolution. It must here be repeated and constantly keep in view, that these provisions extended, not only to South-Carolina, and Georgia, but to all the colonies whose terri­tories lay above and below the heads of the rivers, falling in the Atlantic from the west and north­west of this number, were New-York, Pennsylva­nia, Virginia, and North-Carolina; besides South-Carolina, and Georgia. It is perfectly well known that between the proclamation of 1763, and the revolution, at a time when the British go­vernment still subsisted in Virginia, she extended her settlements beyond the heads of the rivers, falling into the Atlantic. Many of the settlements or Polston, New River, Greenbriar, and other waters falling into the Ohio, were of this descrip­tion, [Page 25]and they were made not only with the per­mission, but under the authority, of the British go­vernment. It is not known at what time the grants of land were made under which these set­tlements took place but it is perfectly certain that the settlements themselves were always considered, as well after the proclamation as before, as being part of Virginia and that the laws were administered in them, under the authority, and in the name of its colonial government. This, it is most evident, could not have been the case, had the proclama­tion of 1763, been considered as curtailing the co­lonies, and restricting them to a line drawn thro' the heads of the rivers. In that case these settle­ments, so far from going on and increasing under the government of Virginia, must have been cut off from the colony; and the exercise of authority there by its governor, would have been regarded as an act of usurpation. But his we know was not the case. If Virginia was not curtailed neither were the other colonies; for the clauses in question apply equally to them all. From whence it is most evident that the crown considered, and intend­ed these clauses as no more then a temporary in­striction to its governors about the time and man­ner of making settlements; the extent and boun­daries of the colonies, when it should permit set­tlements, remaining still the same.

It is equally clear that the subject has always been viewed in the same light by the states them­selves since the revolution, and by the government of the United States. Not to speak of Georgia, which, as we have already seen, passed an act in 1783, to declare and establish her territorial li­mits, it is well known, that South-Carolina grant­ed large grantees of land thro' all the country from the mountains to the Mississippi, which grants she afterwards vacated, not because she had [Page 26]no right to make them, but because the land had not been purchased from the Indians. She after­wards ceded her claim to the United States. North-Carolina too opened a land-office in 1784, and granted several millions of acres between the Mississippi, and the heads of the rivers which fall into the Atlantic. She afterwards ceded the terri­tory to the United States, subject to these grants; and subject to them it was accepted; nor was the validity of the grants, except so far as related to the possessory right of the Indians, ever been dis­puted. Indeed the whole state of Tenessee is held by this very tenure. Before the cession this county was considered as part of North-Carolina, as such was governed, and as such had a represen­tative in the Congress of the United States. In the same manner, Virginia sold the whole Kentucky country, and then erected it into a state; it having remained in the mean time, under her laws, and a part of her state for many years; many and exten­sive districts, which still constitute parts of Virginia, and as such send members to Congress, lie beyond the heads of the rivers which fall into the Atlan­tic. All these settlements, grants, and cessions, have proceeded upon the principle that the western limits of the colonies were not altered by the pro­clamation of 1763. Otherwise all the grants of North-Carolina in Tenessee, and of Virginia in Kentucky, would be illegal; and a very consider­able part of the territory still claimed and possessed by the latter state, must be lopt off from her.

Until therefore it shall be shewn that the clauses in question apply exclusively to South-Carolina, and Georgia, or that the same rules of construction which have been universally adopted and admitted, with respect to the other states, ought not to ap­ply to them likewise, it seems perfectly clear that [Page 27]whether we regard the proclamation of 1763, itself the acts of the British governments under it, or the construction which has been given to it by own governments since the revolution, it cannot be considered as having curtailed the western boun­dary of those states.

From whence it results that the United Stares, can found no claim to the lands in question, on this proclamation.

Their claim however, to these lands, or a part of them, is supported on another principle which must be next examined. It is said that altho' Ca­rolina, originally extended as far south as Florida, yet when the proprietors surrendered their charter, and these territories became re-vested in the crown, the southern limits of that province were restrict­ed by the establishment of Georgia: that the ri­vers Savannah, and Alatamaha, having been fit as the limits of Georgia, all the lands south o st were cut off from the government of South-Caro­lina, and continued to be waste territories of the crown, till part of them were annext to Georgia by the proclamation of sixty three: that this pro­clamation however, extending only to the lands, "between the Alatamaha, and the St. Mary's," could not include the territory which lay above the heads of those rivers; and that this territory there­fore continued to be waste land, not annext to any government, nor part of any colony, till the treaty of peace, by which it was vested in the United states By this pretension, if established, they would gain all the country, bounded by the Floridas, the Mississippi, and a line drawn from the head of the St. Mary's, to that of the Alatamaha, and from thence due west to the Mississippi.

Nothing can be more uncertain than the lati­tude of this last line. If the position of the sources, [Page 28]of the Alatamaha were known, which is very far from being the case, it would still be very diffi­cult to ascertain what ought to be considered as the head of the river: whether the place where it takes the name of the Alatamaha, its nighest source from the sea, or its most southern source, be intended by the charter as the place from where the west line is to be drawn. It has been thought that the most Southern source is meant; but this is far from being fully justified by the words of the char­ter, which evidently refer to the most southern mouth of the river; it being known to enter the sea by several channels. The words are, "From the most northern stream, of a river, there com­monly called the Savannah, all along the sea coast, to the southward, to the most southern stream of a certain other great water or river, called the Alatamaha, and westward, from the heads of of the said rivers respectively to the South-Sea." It: seems probable however, that the highest source from the sea, was the point from whence the west line was intended to be drawn: and tho' this source will remain for a long time uncertain, even should the claim be established, yet it may be af­firmed not to lie so far north, as to affect the pur­chase of the upper Mississippi company, whose most southern extent is no more than twenty-five miles south of the north boundary of Georgia.

The claim however, could certainly include a great, perhaps far the greater part of the Geor­gia company's purchase.

This claim rests on two questions. 1. Whether the lands south of Georgia, continued to be a part of South-Carolina, after the former colony was erected? 2. Whether the whole of them were an­next to Georgia, by the proclamation of 1763, or that part only which lay below the heads of the Alatamaha, and St. Mary's. If they continued to [Page 29]be part of South-Carolina, the cession of that state, by the convention of Beaufort, vested in Georgia such parts of them as were not affected by the pro­clamation of 1763. If they were all affected by that proclamation, then the right of Georgia was complete independantly of the cession from South-Carolina.

As to the first point, it is to be regretted that more satisfactory documents for the investigation of it, cannot be resorted to. The papers most likely to decide it with absolute certainty, are the commissions and instructions, given to the govern­ors of South-Carolina, between the years 1732, when the colony of Georgia, was erected and 1763, the date of the proclamation. Those docu­ments no doubt exist in the office of trade, and plantations in London. An official enquiry was made from a gentleman having access to the re­cords of that office, and he furnished some extracts and copies; but others of a very important nature were omitted. From such documents however, as can be recurred to the following points seem to be satisfactorily established.

First that after the surrender of their charter by the Lords Proprietors, the jurisdiction of the Royal governors of South Carolina extended over the whole country which had been included in that charter

It appears by a representation from the board of trade and plantations to the king, on the 1st of December 1727 that a fort was at that time kept up on the Alatamaha river under the government of South Carolina, and had been for some years; and the continuation of it under the same authority is advised ^*. And on the 10th of June, 1730; the governor of South Carolina was instructed to lay out Townships and grant lands on the Alata­meha ^†.

[Page 30] Secondly that when the Colony of Georgia was erected the country of which it was composed was considered by the British government as part of South-Carolina.

Lord Percival, Oglethorpe and others who first projected the Georgia scheme, petitioned the crown for a grant of land in South-Carolina, for that purpose ^*. In the reports of the board of trade on this petition, Georgia is called "the colony to be established; in South-Carolina ^†." After the establishment of the colony the command of its militia was to remain with the governor of South-Carolina. ^‡Even in the charter, the lands to be in­cluded are described as "lying and being in that part of South-Carolina in America which lies &c." ^‖. Lord Granville's part of South-Carolina not having, at that time, been separately allotted to him, his right in this country as one of the pro­prietors, was admitted still to exist; and according­ly the charter granted only seven eighths of the land to the trustees ^§, to whom Lord Grenville afterwards conveyed his eighth. And in an in­struction to the Governor of South-Carolina, of a date subsequent to the charter, Georgia is mention­ed as "a Colony settled within the bounds of the province of South-Carolina" and the governor of that province is instructed to register the charter among its records ^**.

Thirdly, that after the establishment of Georgia the lands south of its southern boundary still re­mained, and were considered by the crown as be­ing, under the jurisdiction of South-Carolina, and of consequence a part of that province.

It apperas by a representation from the governor of Georgia, dated October 17th 1761, that there [Page 31]was then, and long had been a military post kept up on Cumberland Island, far south of the Alata­maha, "under the direction and authority of the governor of South-Carolina ^*". The governor of South-Carolina too, in a letter to the board of trade dated August 17th 1763, affirms that there was then, and had been for many years, a post to the south­ward of the Alatamaha garrisoned by detachments from that province ^†. But this point is more strongly confirmed by the proceedings which took place with respect to certain lands lying south of the Alatamaha and granted by the governor of South-Carolina in the year 1762. These grants being complained of by the governor of Gorgia, the board of trade and plantations reproved the governor of South-Carolina for making them; not on the ground of his possessing no jurisdiction, but because "the making of grants for lands in that country was contrary to the intentions of the crown, and might not only embarrass the execution of those arrangements which would probably be­come necessary from the cession of Florida, but in­terfere also with the measures about to be taken for the extension of Gorgia ^‡. The governor justified his conduct by alledging that his province still extended as far south as the limits fixt by the charter of Carolina to the lords proprietors, except as to suchland as had been expressly included with­in the charter of Georgia ^‖. In a subsequént re­presentation from the board of trade to the crown they seem to admit that these grants were made "conformably to the governors instructions ^§." And they expressly recommend that an act of the Georgia legislature, passed after that province had been extended to the St. Marys and tending to [Page 32]subject the grantees of those lands to improper conditions, should not receive the royal assent ^*. Transcripts of those grants were afterwards ordered by the crown to be registered in Georgia ^†. And the grants themselves thus virtually confirmed, have ever since been, and still are, considered as valid.

All these proceedings must have been founded on the principle that the lands south of the South­ern boundary of Georgia, as first established by its charter, continued to be a part of South-Carolina till the proclamation of 1763, annext them or part of them at least, to the former province.

How indeed could they cease to be so? nothing is more clear then that all this country was includ­ed within the province of South-Carolina at and before the establishment of Georgia. This has been abundantly proved ^‡. But the charter of Georgia could affect those lands only which were included within its limits; nor was that province ever understood, either by its own governors or the crown, to extend further ^‖. All the rest of the country, of course, remained as it was before, until a further desposition of it was made by some new act of the crown. It is not pretended that any such acts took place till the proclamation of 1763 ^§. The circumstance of this country being sepa­rated from the rest of Carolina by the intervening province of Georgia does not alter the case: for it is by no means necessary, nor does it always happen, that all the territories of a government should lie adjoining. The province of Maine we know, un­der the royal government was, and at this day continues to be, a part of Massachussetts, tho' New-Hampshire lies between them; and Connecti­cut [Page 33]by virtue of her charter, which extended west to the Mississippi, claims and actually holds, lands on lake Erie, notwithstanding that New-York, New-Jersey, and Pennsylvania intervene.

There are however two passages which might seem at first view to contradict this opinion; but it is believed that on examination they will apppear in a different light.

In a report to the crown by the board of trade and plantations, on which the proclamation of 1763 was founded, it is stated "that a large tract of land lying between the North boundary of East Florida and the river Alatamaha, which had hi­herto been unoccupied as to any permament settlement, remained to be put under some proper establish­ment ^*".

On this passage it is to be observed that occupation and right are distinct things; so that the circum­stance of this country's not having been occupied by South-Carolina, would by no means prove that it was not under the jurisdiction, did not from part, of that province. It is not said, moreover, that this country had not been occupied at all; that would have been contrary to the fact; for as we have seen, a post had been kept up in it and gar­risoned from South-Carolina; but that it had not been occupied as to permament settlement. But it is a well known principle of law that a legal possession where necessary, may be maintained without a permanent settlement. Had actual possession in this case been necessary, which may well be doubt­ed, the continued occupation by a military post would have been sufficient.

The board of trade is said to have laid the above-mentioned grants before the crown lawyers, for an opinion on their validity, and to have alledged at the same time "that the province of South-Carolina [Page 34]did not appear, at any time, either when under the government of the proprietors, or since it had been in the hands of the crown, to have ex­ercised any jurisdiction in the country south of the Alatamaha, or taken any possession of it." ^*

It is to be remarked in the first place, that the crown lawyers did not give an opinion, at least not an unfavourable one, on the subject of these grants: from whence it may be inferred that after an ex­amination of the subject, they did not concur in the objections of the board. Secondly, that the assertion of the board, even if true, amounts to nothing; the right to possess, and the exercise of that right, being things altogether distinct. And thirdly, that the assertion is not true; it being evi­dent from the documents already adduced that the province of South-Carolina had always maintained possession of that country, at least till the year 1762, by a military post.

It seems therefore clearly to result from all these considerations that the country south of the Alata­maha not only was a part of South-Carolina pre­viously to the establishment of Georgia, but conti­nued to be so afterwards until the proclamation of 1763. The facts stated indeed relate wholly to the country near the sea coast, because that alone hav­ing been settled by the English or even known to them, the interior parts were never expressly con­templated by the acts of their government. But the principles on which those acts were founded apply equally to every part of the territory south of the ancient southern boundary of Georgia. South-Carolina could claim near the coast in virtue only of her charter, and that charter gave an equal claim to all the land contained within its limits and not included in those of Georgia. The right therefore which they possessed on the shores of the [Page 35]Atlantic before the year 1763, extended equally to the banks of the Mississippi, and by her cession at Beaufort in 1788, was completely vested in the state of Georgia.

As to the second point, whether the proclama­tion of 1763, annexed to Georgia all the land ly­ing between her ancient southern boundary and the northern limits of the Floridas, or such part only as actually lay between the Alatamaha and St. Mary's below their sources? the dicision of it, if now necessary, might be attended with some dif­ficulty. The words of the proclamation are "We have also, with the advice of our privy council aforesaid, annexed to our province of Georgia, all the lands lying between the rivers Alatamaha and St. Mary's ^*." Nothing else is said on the subject. From these expressions, and some others used by the board of trade and plantations in different com­munications ^†to the crown on this matter, it would seem that those lands only which lay below the heads of the rivers were contemplated. But this point seems to have been decided, as far as relates to the United States, by the government itself. In a report from the Secretary of State, intended as the basis of instructions to our commissioners for treating with Spain, the latitude 31, is insisted on as the southern boundary of Georgia "established between that province and Florida by the procla­mation of 1763 ^‡." And in the representation made by our commissioners December 17th 1793, the same thing is repeated, and urged to the court of Spain as the foundation of our right. ^‖ It might [Page 36]perhaps be thought doubtful how far these decla­tions would preclude the government in a court of law; but we can hardly suppose that it would con­tend for a principle formally and expressly contra­dicted by its own solemn acts; which it must do were it to urge a claim against the state of Geor­gia for any of these lands, founded on a supposi­tion that the whole of them, down to the Missis­sippi and the latitude 31, were not annexed to that state by the proclamation in question.

The third and only remaining ground on which the United States can rest their claim to a part of this territory, is the extension of West Florida after the year 1763.

It is contended that the British crown having previously to the year 1770, and while all the co­lonies were subject to its dominion, extended West Florida up to the mouth of the Yazoo and a line drawn due left from thence to the Apilachi­cola, by instructions and commissions to its go­vernors, all the county between that line and the latitude 31, ceasing to belong either to South-Ca­rolina or Georgia, became a part of West Florida, and being thus placed without the jurisdiction of any state in the Union, was ceded, by the treaty of peace, to the United States.

Nothing can be more certain than the principle that all the lands ceded by Great Britain in the treaty of peace, and not included within the limits of any state, became vested in the United States. Nor can there be any doubt that as both Carolina and Georgia were royal governments in the year 1770, the crown had a right at that time to alter, abridge, or extend their limits at its pleasure; to take parts of their territories and annex them to old governments or erect them into new ones. It was by the exercise of this right that after Virginia became a royal government in 1624, ^* part of its [Page 37]territory, all south of the latitude 36, 30, was included in the grant of Carolina: that after the surrender by the lords proprietors, Carolina itself was divided into two governments, and Georgia carved out of one of them; and that the country south of the first boundary established for Georgia was afterwards annexed to that province.

As to the mode of exercising this right there may be more room for doubt. It may be said that when the limits of a province had been fixed by a procla­mation or charter, which are public and solemn acts, they ought not to be altered, and could not legally, by acts of a less solemn nature; such as commissions or instructions. But this objection does not seem to have any weight; because tho' commissions and instructions, especially the for­mer, were not published in the same manner with proclamations, they were nevertheless published, and with circumstances of sufficient notority; being entered of record not only in the office of trade and plantations, but also in the provinces; where they were moreover publicly read. They received in­deed a greater degree of publicity than charters, which were recorded only, without being promul­gated in any manner. As to authenticity, these commissions were acts of the king in council, un­der the great seal, as well as proclamations or let­ters patent, and therefore of equal authority. As the crown, besides, possessed the right of altering boundaries it might certainly exercise that right in whatever manner it thought fit: and indeed the extent of the royal colonies depended, in many instances, on the commissions to governors, and was regulated by them. Of this Virginia, Caro­lina, and Georgia, are examples; which after they became royal governments, were continued according to their ancient limits, not by new let­ters [Page 38]patent, but merely by the commissions to their respective governors.

It therefore seems undeniable, that by this ex­tension of Florida, the territory which it affected was entirely cut off from Georgia, or South-Ca­rolina, to which ever of them it belonged, and rendered completely a part of Florida; from which it necessarily follows that this territory was ceded by the treaty of peace to the United States, not to Georgia, and vested in them.

As the mouth of the Yazoo, however, lies in latitude 32, 30 ^*, or thereabout, it is clear that this claim of the United States does not affect the upper Mississippi commpany's purchase, which cannot extend further south than latitude 34, "30". But a very considerable part of the Geor­gia company's purchase, will lie below a line to be drawn due east from the mouth of the Yazoo. Its southern boundary between the Mississippi and Donbigby, is higher up than that line; namely in latitude 32, 40, but between the Donbigby and Alabama, it extends down nearly to latitude 31. In this quarter consequently, a great part of its lands are included in the claim of the United States.

How far is this claim still valid against the com­pany? Admitting that these lands belonged to the United States at the time of the sale, was it attend­ed or preceded by any conduct on their part which will render it valid against them, in the eye of the law? This was the second point proposed for ex­amination.

On this point two questions arise which ought to be distinctly considered: first whether the con­duct of the United States respecting this territory at the sale, and previous to it, was such as, if [Page 39]persued by an individual under similar circumstan­ces, would have rendered the sale binding on him? and secondly whether the same principles will ap­ply to the government?

As to the first, there is no rule better established in the courts of equity than this, that whoever, knowingly and without constraint, acquiesces in a disposition of his property, for a valuable consi­deration, by a person who pretended and appear­ed to have the right, shall be bound by the disposi­tion: it being a maxim of law, "That silence im­plies content; and that he who does'not forbid an act when he has a right, and an opportunity to do so, orders it ^*." This rule rule has been long ad­mitted in the courts of equity, and is abundantly supported by the authorities cited at the bottom ^†.

But he must acquiese "knowingly," that is he must understand the nature of the act about to be done: for he is bound on the principle of having assented; and a person cannot assent to what he did not know. He must also acquiese, "without constraint," for there can be no assent where there is not freedom.

And the person who makes the disposition, must not only claim a right, but appear to possess it; for whoever should make a purchase from one who neither claimed, nor appeared to possess, a right to sell, could blame none but himself, and must sustain the loss as a punishment for his own folly.

But if the owner should not only acquiese in the [Page 40]sale, but give colour by his conduct to the right of the seller, and in that or any other manner encou­rage the purchasor to buy, he will by stronger reason, be bound to confirm the sale ^*. This principle also is fully established by the authorities already cited.

Let these rules be applied to the acts of the state of Georgia and the conduct of the United States respecting this territory, previously to the sale in question. It will appear that the latter not only acquiesed, but encouraged: that they not only saw in silence all the acts of ownership exercised by Georgia over this land, all her acts preparatory to the sale, and the sale itself, but by their own proceedings gave colour and sanction to her ti­tle.

As early as the year 1783, Georgia began to assert her claim to these lands. In that year she passed an act declaring them to lie within her char­ter-limits, and holding out encouragement to per­sons to settle on them ^†. To this proceeding the United States made no objection.

In 1795, knowing that the Indian claims had been extinguished in a tract of land on the Mis­sissippi, below the mouth of the Yazoo, and be­lieving that extinguishment, as it was within the limits she claimed, to have enured to her benefit, she erected that tract into a county, and offered new encouragement to settlers. She moreover, at the same time, declared her intention of open­ing a land office for the sale of the lands ^‡. To this proceeding the United States made no ob­jection.

Sometime afterwards a dispute arose between the two states, South-Carolina, and Georgia, about [Page 41]this territory, and it was referred to congress; which thus received express notice of the claims of those states, but made no objection to them, al­ledged no right in itself. This dispute was after­wards settled, and South-Carolina ceded her claims to Georgia. The act of cession was com­municated to congress; and congress made no ob­jection ^*; so far indeed was she from objecting that on the 20th of October, 1787, after this cession had been communicated to her, she made a public, and formal requisition, on the state of Georgia; for a cession of her territory ^†. This act, done under a complete knowledge of all the circumstan­ces, was a very strong recognition of the right of that state.

In 1789, Georgia, passed an act for the sale of these lands to certain companies; one of the com­panies attempted a settlement and sent an agent; all this was known to the government of the Unit­ed States, which issued a proclamation against cer­tain acts of the agent, but said not a word against the sale, or about any right of the United States, to the land ^‡.

Two years after this the government of the U­nited States, being engaged in a dispute with Spain about this country, expressly declared, in an of­ficial representation, that it belonged to Georgia by virtue of her charters, and the proclamation of 1763, and rested their claim to it as part of their territories, intirely on her title.

What higher sanction to a title could an indivi­dual, or a government hold out? What stronger acknowledgment than this long acquiescence, fol­lowed by this express declaration, when the subject [Page 41] [...] [Page 42]had been so often discussed, the claim so often re­newed? The government not only suffer Geor­gia repeatedly to say, "This is my land," with­out contradicting her; to sell it once without in­terposing; but, not content with this tacit acqui­escence, joins in the assertion, and lays in a so­lemn act, "This is the land of Georgia." The question may be repeated, what stronger encou­ragement can be given to purchasers?

Even after the last sale had been made, of which the government was formally notified by the go­vernor of Georgia, no sufficient steps were taken to warn the purchasers of their danger, and pre­vent them from completing the payment. When the government received this notice only, fifty thousand dollars out of five hundred thousand had been paid. The rest was not due till some months af­ter. Even then the government set up no claim, made no interference. It merely held up the idea that it might possibly possess a right, by directing its law officers to institute an enquiry into the title of Georgia. Even this idea they did not plainly intimate, much less expressly declare. Their re­solution directs the Attorney general, "To col­lect, digest, and report, to the next congress, the charters treaties, and other documents, relative to, and explanatory, of the title to the lands situate in the southwestern parts of the United States, and claimed by certain companies under a law of the state of Georgia." How was it to be understood from this proceeding that the government claimed the land! with what justice could purchasers, who contracted under the strong previous assurances, which have been stated and after this last transaction paid their money, be called upon for the purchas­ed property, by that very party which had thus led them into the contract?

[Page 43] But was the government apprized of their right? Was it unknown to the purchasers them­selves? These two questions deserve to be consi­dered.

As to the first, it is to be observed that every person is presumed in law to be acquainted with his own rights. This principle is founded on the best reasons. If a person, having a right to land, should stand silently by, and see it sold, and then be permited to reclaim it under pretence, that he was ignorant of his title, a pretence which it would frequently be impossible to disprove, the greatest frauds might be committed. It would therefore be presumed by the courts that he knew his own title, unless he gave very good proof to the con­trary, and he would be bound by the sale. Most of the decisions indeed have been in cases where the party was expressly stated to have been acquaint­ed with his own title; but there are some where this does not appear; and in one ^*, the owner, who was a woman, declared on oath that she was ignorant of her right: yet as she was present at the sale, and did not object, she was decreed to be bound. This must have been on the prin­ciple that every one is presumed to understand his own rights.

This principle however, could apply only in cases where the party had a reasonable opportuni­ty of knowing them; for if he were in circum­stances which rendered that knowledge impossible he could not, on any principle of justice, be con­sidered as having consented to their alienation. In the abovementioned case the woman, tho' ig­norant of her title, was in a situation which ena­bled [Page 44]her to become acquainted with it by proper attention and enquiry ^*. And the United States also might easily have acquired the most complete knowledge of their claim to the land in question.

In cases moreover, of mere silent acquiescence, a party might perhaps be allowed to disprove his own knowledge. Even this would be very doubt­ful. But where he had given positive and express confirmation to the right of the seller, and had thus encouraged the purchaser to buy, he could never be allowed to claim the property in contra­diction to his own declarations. Silence about his right might be occasioned, and therefore, perhaps, excused, by ignorance of it; but that ignorance could never be a sufficient inducement, or a justi­fication, for his declaring the right to be in ano­ther. If he chose ignorantly to make such a de­claration, he himself, not the innocent purchaser, must abide the consequence ^†. In this predica­ment is the government of the United States; which not content with silently acquiescing in the acts of Georgia, has made the strongest declara­tions in favour of her right.

And lastly there is good reason to believe that the government was actually apprized of its right to this land. The extension of Florida, took place in 1770. In 1777 the Indian claims in the Na­tehez district, which lies within the limits of this extension, were extinguished by the British govern­ment. At the treaty held at Hopewell, in 1786, between the United States and the Chacktaws, the former, in order to preclude the Indians from the Natehez district, availed themselves of this extin­guishment: [Page 45]and as for obvious reasons, they could not have supposed it to have been made for the benefit of any other government than Florida, Georgia having then declared itself independent, it was notice to them that the British had extended the jurisdiction of that province. Their claim is founded on this extension; of which if they did not in this manner receive complete notice, they had such intimation at least, as not only made it incumbent on them to enquire fully into the busi­ness ^*, but pointed out the source from whence all necessary information might be drawn.

But it may be asked, if the government was apprized of these circumstances, why did it omit to urge them in its negociations with Spain? The reason is obvious. To have urged them would have defeated its own claim. It could claim this country as part of the United States, on the ground only that it was not a part of Flo­rida. To have shewn that it had become a part of that province before the treaty of peace, would have established the claim of Spain; for Florida was ceded to her previously to the defini­tive treaty between Great-Britain, and us; and it is on the definitive treaty that our claim rested. It was the business of our government therefore to keep this matter out of view; and fortunately for us, it seems to have been unknown to the Spani­ards. Certainly it was much wiser to retain this country, as part of the United States, even at the expence of giving it to Georgia, than to yield it to Spain. If our government chose to pursue that course, and by its conduct and assertions individu­als have been induced, confiding in its authority, to regard Georgia as the owner of these lands and to purchase from her, with what justice could the United States now attempt to deprive them of the [Page 46]property? Is government, contrary to every rule of law, to take advantage of its own acts in order to injure others, and to punish them for having con­fided in its solemn declarations?

But were not the purchasers themselves acquaint­ed with this right, or at least bound to take notice of it? And in that case did they not purchase at their own risk? The answer to this also is obvious. Had the United States been acquiescent, had they remained silent and passive only, the purchasers might have been considered, perhaps, as taking at their own risk: but when Georgia openly claimed and exercised the right, and the United States not only made no objection but aided the claim by their positive declarations, the purchasers were bound to look no further. Even had the claim of the government been matter of record ^*, or had they been expressly informed of its exis­tence ^†, yet would their purchase have been valid under these circumstances of encouragement, by the government itself.

It seems clear therefore, that as the party selling not only claimed the right, but had the appear­ance of possessing it, which appearance was con­firmed by the acquiescence, and even the express declaration of the true owners, this sale, in the case of an individual, would be completely valid and binding in law.

But will the same rules apply to a government? This is the point next to be examined.

In the English law, from which most of our maxims of jurisprudence are derived, it is a re­ceived principle that the king who represents the government, and in whom the public property is legally vested, can be made ameanable to no kind of process; that to him no fraud, no improprie­ty, [Page 47]no negligence even, can be imputed. Yet if he should do a wrongful act, as making an im­proper grant, for instance, the court of Chancery would give redress to the party injured, and even set aside the grant, if necessary, on the ground that the king had been deceived. This proves two things; first that the acts of government are subject to the rules of law and justice, although the go­vernment itself cannot be brought to answer in a Legal process: And secondly, that the inability of the government to do wrong is a mere fiction, which the judicial power explains a way in favour of justice, whenever it can. They will not say that the act was done thro' negligence or an improper intention, but through deception; yet if in fact wrongful, they will set it aside, whenever it is of such a nature as to be subjected to their controul.

This being the case even in England, whose monarchieal government is supposed to require a sacred inviolability in the chief Magistrate, the same maxims should obtain more readily and in greater extent among us, as being far more con­genial to the nature and principles of our govern­ment. Accordingly we find that the idea of sub­jecting the acts of government to the rules of ju­dicial dicision is perfectly familiar in our consti­tutions. Our courts make no difficulty of declar­ing Ligislative acts void, even those of the Union, where they are contrary to the Constitution. This is founded on the principle that the ligislatures in making such acts, have exceeded their autho­rity. Why should not the acts of government in other instances also, be subjected to the rules of law and the maxims of justice? Why should not this salutary controul of the judicial power, be ex­tended to all cases where the acts complained of [Page 48]can be brought within its reach? There seems to exist, be good reason to the contrary. Our go­vernment possesses land which it is in the practice of selling to individuals; and it appoints agents for that purpose, with proper powers and instruc­tions. If after one of these agents had made a sale persuant to his powers, the government should attempt to reclaim the land or sell it again, would not the judicial power protect the title of the first purchaser? Would it not enquire into the validity of the second sale whenever it became the subject of litigation, and declare it void, even if made by an express law? There seems no doubt on this head. If then the judicial power would enforce the rules of law and justice as to one mode of disposing of property by the govern­ment, why should it not equally enforce them as to other modes? And we know that a person may as effectually dispose of his Land by standing by, while another sells it, as by selling it himself.

Upon the whole, there does not seem to be any reason why the same rules which have been esta­blished on this subject respecting individuals should not equally apply to the acts of government. From whence it would result that the United States, having not only acquiesced in all the acts of ownership exercised by the State of Georgia over this Land, and in the ultimate sale of it, but also supported and given colour to the right of that State by express declarations in its favour, will be bound by the sale. This opinion however cannot be positively pronounced. The matter is attended by many difficulties; and the dicision, in some of its most important parts, rests not on authority, but on reasonings, the force of which must be judged of in the courts. There perhaps a very different view of the subject may may be entertained.

[Page 49] The claims of the United States, which opened the first, and far the most extensive field of enqui­ry, having been thus surveyed, the repealing act of Georgia now presents itself for consideration.

This act it is to be observed in the first place does not profess to repeal the act of January 7th 1795, but declares it void. The reasons for this mode of proceeding are obvious. The act of January 7th had produced its whole effect. The sales which it directed had been completely made, the money paid, and grants passed. It could not therefore have been at all affected by a repeal: for it is a well known principle that to repeal a law, far from undoing what has already been done under it, can only prevent its future operation. In or­der to destroy these sales therefore—which was the object aimed at by the legislature—it was ne­cessary to do something more than repeal the law it was necessary to declare it originally void.

A single observation, which presents itself here, might decide the question on this repealing law It is this; that the force, validity or meaning of a legislative act is purely a judicial question, and altogether beyond the province of the legislature It is the province of the legislative power to make laws, to give them their existence; but to ex­pound and enforce them belongs to the judiciary. The judicial power is to declare what the law is; the legislative, what it shall be. The legislature therefore may repeal one of its own acts; that is, may declare that it shall not hereafter be law: but should it go further, and declare that it is void, that it is not now law, it steps beyond its powers; and its proceedings become null.

This is a fundamental principle of all our consti­tutions, which declare that the judicial and legisla­tive powers shall be distinct and separate. It results [Page 50]also from the very existence of a written constitu­tion; which, by its necessary operation, prescribes limits to the legislative body, and confides the pro­tection and maintainance of those limits to the ju­dicial power. As well might the legislature try causes, or hear appeals, as attempt to expound, enforce, or declare void one of its own acts; ex­cept so far as might relate to the future operation of such act. Its validity, so far as might relate to its former operation, to acts already done under its authority, is a question which the courts of jus­tice alone not the legislature are competent to decide.

These sales moreover were contracts, made with the utmost solemnity, for a valuable consideration, and carried deliberately into complete execution. It is an invariable maxim of law and of natural justice, that one of the parties to a contract can­not by his own act, exempt himself, from its obli­gation. A contrary principle would break down all the ramparts of right, disolve the bonds of pro­perty, and render good faith, to enforce the observ­ance of which is the great object of civil institu­tions, subservient to the partiality, the selfishness, and the unjust caprices of every individual. There is no reason why governments, more than private persons, should be exempt from the opera­tion of this mixim; nor are they considered as ex­empt by our constitution or our laws. The state of Georgia, being a party to this contract, could no more relieve itself from the obligation, by any act of its own, than an individual who had signed a bond could relieve himself from the necessity of pay­ment there were sufficient grounds for relief in either case, the state or the individual must resort to the courts of justice, where it would be afforded: but the acts of the one and the other for relieving themselves would be equally and essentially negatory.

[Page 51] The act of Georgia therefore can have no legal effect. ^* It can be regarded only as a declara­tion stating the grounds on which that state con­ceives itself intitled to relief from the contract in question. As such a declaration however, from so respectable a body as the legislature of a state, cannot fail to make a strong impression, it will be not improper to examine these grounds a little more minutely, in order that a better judgment may be formed about their sufficiency.

The sales are declared void by this act, on two grounds. First that the legislature had not con­stitutional power to make them. Secondly that in passing the act for that purpose, it was influen­ced by fraudulent and corrupt motives.

As to the first, it is not improper to repeat that it is purely an object of judicial enquiry. Had the state of Georgia, as it might have done, filed a bill in the supreme federal court against the purchasers, to set aside the sales, one object of enquiry in that court would have been whether they they were made by sufficient authority: and if it had found that they were not, they must have been set aside. But who ever heard till this act was passed, that the legislatures under our consti­tutions have not power to sell the public proper­ty, or give it away? This has always been consi­dered as one of the most essential branches of le­gislative authority. It has been exercised by every legislature in the Union; and by that of Georgia, in numerous instances. If the legislature has a right to dispose of the public lands, which cannot be deni­ed, it may dispose of them in what quantities and [Page 52]on what conditions it thinks fit: for the right be­ing unrestricted, so must be its exercise.

The second ground, the ground of fraud and corruption, was equally a subject of judicial inqui­ry. There cannot be a doubt that if a legislative body in making a contract, has been imposed on, it will, equally with an individual, be intitled to relief; but, like an individual, it must seek this relief in a court of justice. In a bill filed in this case for setting aside the sales, the allegation of fraud would have been enquired into, and, if sup­ported by proper proof, would no doubt have been a sufficient ground for relief. This course the state might have pursued. In this manner it might have obtained whatever remedy it is inti­tled to in law and justice.

But what is the nature of the fraud complained of; and by what proof is the charge supported?

The act does not pretend that the legislature which made these sales was deceived, was imposed on; but that some individuals among them were corrupted. Do the circumstances alledged a­mount to corruption? Can the motives of indivi­dual members be enquired into, in order to inva­lidate the acts of a legislative body?

It is alledged by the act "That a majority of those members of the legislature who voted in favour of the sales, were engaged in the purchase." There are various other vague and general charges, but this is the only specific fact alledged. It is not even pretended that a majority of the legislature was concerned, but only "A majority of those who voted for the sales." Admitting this to be true, was it an act of corruption? It might be con­sidered perhaps as an impropriety; but on what ground can it be stigmatized as corrupt? It is not stated that those persons were bribed; that [Page 53]they were to receive money for their votes, or even to have part of the land without paying for it; but simply that they were concerned in the purchase. But are there no other than corrupt motives which could induce a member to vote for a sale of public property, in which he himself was concerned? Might he not regard the sale, espe­cially as it was of lands, the benefit of which to the public depends on their being cultivated, as advantageous to the state as well as to the purcha­sers? Might it not in fact be so? It is a rule of law that if an act can be fairly accounted for on proper motives, corrupt ones shall not be presumed.

But it is believed that a legislative act can never be invalidated on account of the motives from which it may have been agreed to by individual members: that those motives can never be brought into question. Could such enquiries be instituted where could be the end of them? By what mode of proof should they be conducted? What a door would be opened to fraud and uncertainty of every kind! The very foundations of legislative authori­ty would be shaken; and all its acts might be nul­lified by the fraud or the artifices of individuals. If the legislature, considered as an individual, have been imposed on, like an individual it may be re­lieved: if it have exceeded the bounds of its au­thority, its acts are null; but the motives of its members can never be questioned without striking at the root of law, and introducing scenes of con­fusion a thousand times more intolerable, then any evils which it could intended to remedy.

The proofs of this corruption, which come next to be considered, are stated by the act under four heads: affidavits; presentments of grand juries; petitions and remonstrances; and the circumstance [Page 54]of a larger sum having been rejected for the same property.

It is well known that the presentments of a grand jury are never admitted as evidence in courts of justice. Even the testimony on which they are founded is, for the most part, of such a nature that it could not be received there. They serve as the foundations of enquiry, but never as proof of a fact. Such of the presentments in question as have been seen, even if they were admitted as evi­dence, would prove nothing; for they either de­nounce the sales in general terms, as injurious to the public and improperly obtained, or merely state the fact of some members having been con­cerned, or requested to be so, in the purchase.

Still less can remonstrances and petitions be re­lied on in the decision of legal rights. The means by which they are frequently obtained, and the slight grounds whereon they sometimes rest, are too well known to need any observations.

As to the rejection of a larger offer, it may have been a very wise step. The security may have been deemed insufficient. The offer may have been considered as delusive. It is not known by the counsel much less insinuated, that this was the case; but it is sufficient that it may have been so considered by the legislature, and therefore may have furnished them with a very upright tho' perhaps ill-judged motive, for their rejection. The fact is that the offer was made by only four or five individuals; while the companies who purchased consisted of a very considerable num­ber. The latter also paid a large sum in advance, which it is not understood that the former proposed. Under these circumstances, surely it is not necessa­ry to resort to corrupt motives for the preference.

[Page 55] On the subject of the affidavits, all of which have been carefully examined, several important observations occur.

In the first place they were ex parte; taken in private, before a committee of the house of repre­sentatives; the witnesses not confronted with those persons against whom their testimony was to ope­rate; not subjected to cross-examination. The admission of testimony taken in this manner is no less contradictory to the practice of every court known to the American constitutions, than to the plain principles of natural justice. Had those wit­nesses been cross-examined, it is impossible to tell what circumstances might have appeared to give a different complexion to the whole case. In testi­mony too not delivered from the mouth of the witness himself, but taken in writing and taken by one side only, it is natural to presume that what­ever makes in favour of that side will be more par­ticularly dwelt on, and more strongly expressed; while such parts as seem opposed to it are apt to be either omitted or stated imperfectly. This arises from the natural imperfection of the human mind, from the effect of our passions on our understand­ing and our conduct. Hence has resulted a rule which is invariably observed in all our courts; that testimony is never admitted, unless both par­ties have had an opportunity of joining in the ex­amination.

In the case of these affidavits it is affirmed that the examining committee refused to take down material parts of the testimony actually given by the witnesses, and tending to exculpate the mem­bers accused of corruption. ^* In the uncertainty that there is, whether this fact may not have been [Page 56]misunderstood, the respect due to such a body as the committee of a legislative assembly represses those remarks to which, of true, it must give rise.

But the evidence itself, if properly taken, is li­able to many strong objections.

In some instances it is contradictory ^* and con­jectural ^†? It depends in a great degree on hear­say ^‡, which the best known rules of law, and the dictates of common justice, concur in rejecting. It consists almost wholly of the confessions of members made, not to the legislature or the com­mittee, but to the witnesses, about the impropriety of their own conduct; and finally the whole scope of it is to prove that certain members, who voted for the law, were actuated by corrupt motives; a point which it has been shewn, can never be en­quired into for the purpose of invalidating a le­gislative act.

It is worthy of remark also that the members who appear by these affidavits to have been con­cerned in the contract, were to pay their portion of the purchase money. ^§ There is indeed one in­stance of the contrary; but it is proved by the hearsay confession, not of the member himself, but of a person who declared himself to be one of the purchasers ^§.

This testimony therefore, whether its substance be regarded or the manner of its being taken, ap­pears equally defective.

But if it were less so, if the proofs of corrup­tion in the legislature were not only admissible but strong, they would be greatly counter balanced by the conduct of the governor. He has never [Page 57]been accused, or even suspected, of corruption. It can hardly be conceived, that, pure himself, he would have aided the corruption of others; would have sanctioned an act which he knew to have originated in motives so flagitious. Had these practices existed, it is next to impossible that they should have escaped his knowledge; for he was not only on the spot, and well acquainted with all the actors in this business, but lived in the closest connection and intimacy with some of its warmest opposers ^*.

It cannot be pretended that the governor coun­tenanced this act through deference of the Legis­lature; for the same motive would have led him to concur in the first bill which however was rejected. He must therefore have assented to the second, be­cause he found it free from those objections which had operated against the first; and considered it as conducive to the public good. Why may not the legislature be concieved to have acted from the same motives? Must corruption be resorted to in order to find a reason for their doing an act, which the governor, equally enlightened with them, was led to by a sense of duty?

Thus it seems clear that the legislature of Geor­gia was wholly incompetent to set aside this act, even had there been sufficient grounds; because this is a judicial, not a legislative function, and because the sale was a contract to which the state itself was a party: that had the legislature been competent, the evidence on which it proceeded was not only inconclusive, but altogether inadmissible: And that, since to dispose of the public land is one of the most undeniable powers of the legislature, and [Page 58]the motives of members, even if corrupt, which in this case is far from being established, cannot be alledged against the validity of a legislative act, there was no ground, either of unconstitu­tionality or corruption, upon which, even in a competent tribunal, this act could have been de­clared void.

It is proper to add that even if this contract could be set aside, an essential condition of doing so must be the repayment of the purchase money. It is one of the most obvious improprieties in the re­pealing act, that it attempts to destroy the purchase without making the least provision, or even stipu­lation, for their repayment ^*. If, as it has been asserted, the legislature which passed the repealing act made an appropriation of part of this money, it was a complete confirmation, as far as depend­ed on them, of the contract which they avowed an intention of annulling ^†.

From this view of the two points submitted, taken under all those aspects which were declared important, the undersigned counsel is led to the following conclusion, which he certifies as his opi­nion: 1. That the United States never had a right to any part of the lands in question, above a line drawn due east from the mouth of the Ya­zoo: 2. That, under circumstances of the case, they will probably be considered, in the courts of equity, as bound by the sales which have been made by the state of Georgia below that line: And 3. That the title of the purchasers, either above or below, can in no degree be affected by the repealing act of that State.