Unites States Supreme Court Decisions
Fletcher v Peck
10 U.S. 87 (1810)

ERROR TO THE CIRCUIT COURT FOR THE DISTRICT OF MASSACHUSETTS

Mr. Chief Justice Johnn Marshall delivered the opinion of the Court.

Mr. Justice Johnson, J., Dissenting Opinion

Syllabus

If the breach of covenant assigned be that the State had no authority to sell and dispose of the land, it is not a good plea in bar to say that the Governor was legally empowered to sell and convey the premises, although the facts stated in the plea as inducement are sufficient to justify a direct negative of the breach assigned.

It is not necessary that a breach of covenant be assigned in the very words of the covenant. It is sufficient if it show a substantial breach.

The Court will not declare a law to be unconstitutional unless the opposition between the Constitution and the law be clear and plain.

The Legislature of Georgia, in 1795, had the power of disposing of the unappropriated lands within its own limits.

In a contest between two individuals claiming under an act of a legislature, the Court cannot inquire into the motives which actuated the members of that legislature. If the legislature might constitutionally pass such an act; if the act be clothed with all the requisite forms of a law, a court, sitting as a court of law, cannot sustain a suit between individuals founded on the allegation that the act is a nullity in consequence of the impure motives which influenced certain members of the legislature which passed the law.

When a law is in the nature of a contract, when absolute rights have vested under that contract, a repeal of the law cannot devest those rights.

A party to a contract cannot pronounce its own deed invalid, although that party be a sovereign State. A grant is a contract executed.

A law annulling conveyances is unconstitutional because it is a law impairing the obligation of contracts within the meaning of the Constitution of the United States.

The proclamation of the King of Great Britain in 1763 did not alter the boundaries of Georgia.

The nature of the Indian title is not such as to absolutely repugnant to seisin in fee on the part of the State.

The question whether a law is void for its repugnancy to the Constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided in a doubtful case. The Court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its act to be considered void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.

One individual who holds lands in the State of Georgia under a deed covenanting that the title of Georgia was in the grantor brings an action of covenant on this deed, and assigns as a breach that some of the members of the Legislature were induced to vote in favour of the law which constituted the contract by being promised an interest in it, and that therefore the act is a mere nullity. This solemn question cannot be brought thus collaterally and incidentally before the Court. It would be indecent in the extreme, upon a private contract between two individuals, to enter into an inquiry respecting the corruption of the sovereign power of the State. If the title be plainly deduced from a legislative act which the legislature might constitutionally pass, if the act be clothed with all the requisite forms of law, a court, sitting as a court of law, cannot sustain a suit brought by one individual against another founded on the allegation that the act is a nullity in consequence of the impure motives which influenced certain members of the legislature which passed the acts.

If a suit be brought to set aside a conveyance obtained by fraud, and the fraud be clearly proved, the conveyance will be set aside as between the parties, but the rights of third persons who are purchasers without notice for a valuable consideration cannot be disregarded.

The principle asserted is that one legislature is competent to repeal any act which a former legislature was competent to pass, and that one legislature cannot abridge the powers of a succeeding legislature. The correctness of this principle so far as it respects general legislation cannot be controverted. But if an act be done under a law, a succeeding legislature cannot undo it. The past cannot be recalled by the most absolute power.

The State legislatures can pass no ex post facto law. An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed. Such a law may inflict penalties upon the person, or may inflict pecuniary penalties which swell the public treasury. The legislature is then prohibited from passing a law by which a man's estate, or any part of it, shall be seized for a crime which was not declared by some previous law to render him liable for punishment.

It was doubted whether a State can be seised in fee of lands subject to the Indian title, and whether a decision that they were seised in fee might not be construed to amount to a decision that their grantee might maintain an ejectment for them notwithstanding that title. The majority of the Court is of opinion that the nature of the Indian title, which is certainly to be respected by all courts until it be legitimately extinguished, is not such as to be absolutely repugnant to a seisin in fee on the part of the State.

Error to the Circuit Court for the District of Massachusetts in an action of covenant brought by Fletcher against Peck.

The first count of the declaration states that Peck, by his deed of bargain and sale dated the 14th of May, 1803, in consideration of 3,000 dollars, sold and conveyed to Fletcher 15,000 acres of land lying in common and undivided in a tract described as follows: beginning on the river Mississippi, where the latitude 32 deg. 40 min. north of the equator intersects the same, running thence along the same parallel of latitude a due east course to the Tombigby river, thence up the said Tombigby river to where the latitude of 32 deg. 43 min. 52 sec. intersects the same, thence along the same parallel of latitude a due west course to the Mississippi; thence down the said river, to the place of beginning; the said described tract containing 500,000 acres, and is the same which was conveyed by Nathaniel Prime to Oliver Phelps by deed dated the 27th of February, 1796, and of which the said Phelps conveyed four-fifths to Benjamin Hichborn, and the said Peck by deed dated the 8th of December, 1800; the said tract of 500,000 acres being part of a tract which James Greenleaf conveyed to the said N. Prime, by deed dated the 23d of September, 1795, and is parcel of that tract which James Gunn, Mathew M'Allister, George Walker, Zachariah Cox, Jacob Walburger, William Longstreet and Wade Hampton, by deed dated 22d of August, 1795, conveyed to the said James Greenleaf; the same being part of that tract which was granted by letters patent under the great seal of the State of Georgia, and the signature of George Matthews, Esq. Governor of that State, dated the 13th of January, 1795, to the said James Gunn and others, under the name of James Gunn, Mathew M'Allister, and George [p*88] Walker and their associates, and their heirs and assigns in fee simple, under the name of the Georgia company; which patent was issued by virtue of an Act of the Legislature of Georgia, passed the 7th of January, 1795, entitled

An act supplementary to an act for appropriating part of the unlocated territory of this State for the payment of the late State troops, and for other purposes therein mentioned, and declaring the right of this State to the unappropriated territory thereof, for the protection and support of the frontiers of this State, and for other purposes.

That Peck, in his deed to Fletcher, covenanted

that the State of Georgia aforesaid was, at the time of the passing of the act of the legislature thereof (entitled as aforesaid), legally seised in fee of the soil thereof, subject only to the extinguishment of part of the Indian title thereon. And that the Legislature of the said State at the time of passing the act of sale aforesaid had good right to sell and dispose of the same in manner pointed out by the said Act. And that the Governor of the said State had lawful authority to issue his grant aforesaid, by virtue of the said Act. And further, that all the title which the said State of Georgia ever had in the aforegranted premises has been legally conveyed to the said John Peck by force of the conveyances aforesaid. And further, that the title to the premises so conveyed by the State of Georgia, and finally vested in the said Peck, has been in no way Constitutionally or legally impaired by virtue of any subsequent act of any subsequent Legislature of the said State of Georgia.

The breaches assigned in the first count was that, at the time the said Act of 7th of January, 1795, was passed,

the said Legislature had no authority to sell and dispose of the tenements aforesaid, or of any part thereof, in the manner pointed out in the said Act.

In the second count, that at Augusta, in the said State of Georgia, on the 7th day of January, 1795, the said James Gunn, Mathew M'Allister [p*89] and George Walker, promised and assured divers members of the Legislature of the said State then duly and legally sitting in General Assembly of the said State, that if the said members would assent to and vote for the passing of the act of the said General Assembly, entitled as aforesaid, the same then being before the said General Assembly in the form of a bill, and if the said bill should pass into a law, that such members should have a share of, and be interested in, all the lands which they the said Gunn, M'Allister and Walker and their associates should purchase of the said State by virtue of and under authority of the same law, and that divers of the said members to whom the said promise and assurance was so made as aforesaid were unduly influenced thereby, and, under such influence, did then and there vote for the passing the said bill into a law, by reason whereof the said law was a nullity, and, from the time of passing, the same as aforesaid was, ever since has been, and now is, absolutely void and of no effect whatever; and that the title which the said State of Georgia had in the aforegranted premises at any time whatever was never legally conveyed to the said Peck, by force of the conveyances aforesaid.

The third count, after repeating all the averments and recitals contained in the second, further averred that, after the passing of the said act, and of the execution of the patent aforesaid, the General Assembly of the State of Georgia, being a legislature of that State subsequent to that which passed the said act, at a session thereof, duly and legally holden at Augusta in the said State, did, on the 13th of February, 1796, because of the undue influence used as aforesaid in procuring the said act to be passed, and for other causes, pass another certain act in the words following that is to say,

An act declaring null and void a certain usurped act passed by the last legislature of this State at Augusta, the 7th day of January, 1795, under the pretended title of

An act supplementary to an act entitled an act for appropriating a part of the unlocated [p*90] territory of the State for the payment of the late State troops, and for other purposes therein mentioned, declaring the right of this State to the unappropriated territory thereof for the protection of the frontiers, and for other purposes,

and for expunging from the public records the said usurped act, and declaring the right of this State to all lands lying within the boundaries therein mentioned.

By which, after a long preamble, it is enacted

That the said usurped act passed on the 7th of January, 1795, entitled, &c. be, and the same is hereby declared, null and void, and the grant or grants right or rights, claim or claims, issued, deduced, or derived therefrom, or from any clause, letter or spirit of the same, or any part of the same, is hereby also annulled, rendered void, and of no effect, and as the same was made without constitutional authority, and fraudulently obtained, it is hereby declared of no binding force or effect on this State, or the people thereof, but is and are to be considered, both law and grant, as they ought to be, ipso facto, of themselves, void, and the territory therein mentioned is also hereby declared to be the sole property of the State, subject only to the right of treaty of the United States to enable the State to purchase, under its preemption right, the Indian title to the same.

The second section directs the enrolled law, the grant, and all deeds, contracts, &c. relative to the purchase to be expunged from the records of the State, &c.

The third section declares that neither the law nor the grant nor any other conveyance, or agreement relative thereto shall be received in evidence in any court of law or equity in the State so far as to establish a right to the territory or any part thereof, but they may be received in evidence in private actions between individuals for the recovery of money paid upon pretended sales, &c.

The fourth section provides for the repayment of money, funded stock, &c. which may have been paid into the treasury, provided it was then remaining [p*91] therein, and provided the repayment should be demanded within eight months from that time.

The fifth section prohibits any application to Congress, or the General Government of the United States for the extinguishment of the Indian claim.

The sixth section provides for the promulgation of the act.

The count then assigns a breach of the covenant in the following words, viz.:

And by reason of the passing of the said last-mentioned act, and by virtue thereof, the title which the said Peck had, as aforesaid, in and to the tenements aforesaid, and in and to any part thereof, was constitutionally and legally impaired, and rendered null and void.

The fourth count, after reciting the covenants as in the first, assigned as a breach

that at the time of passing of the Act of the 7th of January, 1795, the United States of America were seised in fee simple of all the tenements aforesaid, and of all the soil thereof, and that, at that time the State of Georgia was not seised in fee simple of the tenements aforesaid, or of any part thereof, nor of any part of the soil thereof, subject only to the extinguishment of part of the Indian title thereon.

The defendant pleaded four pleas, viz.:

First plea. As to the breach assigned in the first count, he says,

That, on the 6th of May, 1789, at Augusta, in the State of Georgia, the people of that State by their delegates, duly authorized and empowered to form, declare, ratify, and confirm a constitution for the government of the said State, did form, declare, ratify, and confirm such constitution, in the words following:

[Here was inserted the whole Constitution, the sixteenth section of which declares that the General Assembly hall have power to make all laws and ordinances [p*92] which they shall deem necessary and proper for the good of the State which shall not be repugnant to this constitution.] The plea then avers that, until and at the ratification and confirmation aforesaid of the said constitution, the people of the said State were seised, among other large parcels of land, and tracts of country, of all the tenements described by the said Fletcher in his said first count, and of the soil thereof in absolute sovereignty, and in fee simple (subject only to the extinguishment of the Indian title to part thereon), and that, upon the confirmation and ratification of the said Constitution, and by force thereof, the said State of Georgia became seised in absolute sovereignty, and in fee simple, of all the tenements aforesaid, with the soil thereof, subject as aforesaid, the same being within the territory and jurisdiction of the said State, and the same State continued so seised in fee simple until the said tenements and soil were conveyed by letters patent under the great seal of the said State, and under the signature of George Matthews, Esq., Governor thereof, in the manner and form mentioned by the said Fletcher in his said first count. And the said Peck further saith that on the 7th of January, 1795, at a session of the General Assembly of the said State duly holden at Augusta within the same, according to the provisions of the said constitution, the said General Assembly, then and there possessing all the powers vested in the Legislature of the said State by virtue of the said Constitution, passed the Act above mentioned by the said Fletcher in the assignment of the breach aforesaid, which Act is in the words following that is to say, "An Act supplementary," &c.

[Here was recited the whole act, which, after a long preamble, declares the jurisdictional and territorial rights, and the fee simple to be in the State, and then enacts that certain portions of the vacant lands should be sold to four distinct associations of individuals, calling themselves respectively, "The Georgia Company," "The Georgia Mississippi Company," "The Upper Mississippi Company," and "The Tennessee Company."]

The tract ordered to be sold to James Gunn and [p*93] others (the Georgia Company) was described as follows:

All that tract or parcel of land, including islands, situate, lying and being within the following boundaries, that is to say, beginning on the Mobile bay where the latitude 31 deg. north of the equator, intersects the same, running thence up the said bay to the mouth of Lake Tensaw; thence up the said Lake Tensaw to the Alabama River, including Curry's, and all other islands therein; thence up the said Alabama River to the junction of the Coosa and Oakfushee Rivers; thence up the Coosa River above the big shoals to where it intersects the latitude of thirty-four degrees north of the equator; thence a due west course to the Mississippi River; thence down the middle of the said river to the latitude 32 deg. 40 min.; thence, a due east course to the Don or Tombigby River; thence down the middle of the said river to its junction with the Alabama River; thence down the middle of the said river to Mobile Bay; thence down the Mobile Bay to the place of beginning.

Upon payment of fifty thousand dollars, the Governor was required to issue and sign a grant for the same, taking a mortgage to secure the balance, being two hundred thousand dollars, payable on the first of November, 1795.

The plea then avers that all the tenements described in the first count are included in, and parcel of, the lands in the said Act to be sold to the said Gunn, M'Allister, and Walker and their associates, as in the Act is mentioned. And that, by force and virtue of the said Act, and of the Constitution aforesaid, of the said State, the said Matthews, Governor of the said State, was fully and legally empowered to sell and convey the tenements aforesaid, and the soil thereof, subject as aforesaid, in fee simple by the said patent under the seal of the said State, and under his signature, according to the terms, limitations, and conditions in the said Act mentioned. And all this he is ready to verify; wherefore, &c. [p*94]

To this plea there was a general demurrer and joinder.

Second plea. To the second count, the defendant,

protesting that the said Gunn, M'Allister, and Walker did not make the promises and assurances to divers members of the Legislature of the said State of Georgia, supposed by the said Fletcher in his second count, for plea saith that, until after the purchase by the said Greenleaf, as is mentioned in the said second count, neither he the said defendant, nor the said Prime, nor the said Greenleaf, nor the said Phelps, nor the said Hichborn, nor either of them, had any notice nor knowledge that any such promises and assurances were made by the said Gunn, M'Allister and Walker, or either of them, to any of the members of the Legislature of the said State of Georgia, as is supposed by the said Fletcher in his said second count, and this he is ready to verify,

&c.

To this plea also there was a general demurrer and joinder.

The third plea to the third count was the same as the second plea, with the addition of an averment that Greenleaf, Prince, Phelps, Hichborn and the defendant were, until and after the purchase by Greenleaf, on the 22d of August, 1795, and ever since have been, citizens of some of the United States other than the State of Georgia.

To this plea also there was a general demurrer and joinder.

Fourth plea. To the fourth count, the defendant pleaded that, at the time of passing the Act of the 7th of January, 1795, the State of Georgia was seised in fee simple of all the tenements and territories aforesaid, and of all the soil thereof, subject only to the extinguishment of the Indian title to part thereof, and of this he puts himself on the country, and the plaintiff likewise. [p*95]

Upon the issue joined upon the fourth plea, the jury found the following special verdict, viz.:

That his late majesty, Charles the second, King of Great Britain, by his letters patent under the great seal of Great Britain, bearing date the thirtieth day of June, in the seventeenth year of his reign, did grant unto Edward Earl of Clarendon, George Duke of Albemarle, William Earl of Craven, John Lord Berkeley, Antony Lord Ashby, Sir George Carteret, Sir John Colleton, and Sir William Berkeley, therein called lords proprietors, and their heirs and assigns, all that Province, territory, or tract of ground, situate, lying and being in North America, and described as follows: extending north and eastward as far as the north end of Carahtuke River or gullet, upon a straight westerly line to Wyonoahe Creek, which lies within or about the degrees of thirty-six and thirty minutes of northern latitude, and so west in a direct line as far as the South Seas, and south and westward as far as the degrees of twenty-nine inclusive, northern latitude, and so west in a direct line as far as the South Seas (which territory was called Carolina), together with all ports, harbours, bays, rivers, soil, land, fields, woods, lakes, and other rights and privileges therein named; that the said lords proprietors, grantees aforesaid, afterwards, by force of said grant, entered upon and took possession of said territory, and established within the same many settlements, and erected therein fortifications and posts of defence.

And the jury further find that the northern part of the said tract of land, granted as aforesaid to the said lords proprietors, was afterwards created a colony by the King of Great Britain, under the name of North Carolina, and that the most northern part of the thirty-fifth degree of north latitude was then and ever afterwards the boundary and line between North Carolina and South Carolina, and that the land, described in the plaintiff's declaration, is situate in that part of said tract, formerly called Carolina, which was afterwards a colony called South Carolina, as aforesaid; that afterwards, on the twenty-sixth day of July, in the [p*96] third year of the reign of his late majesty George the second, King of Great Britain, and in the year of Our Lord one thousand, seven hundred and twenty-nine, the heirs or legal representatives of all the said grantees, except those of Sir George Carteret, by deed of indenture, made between authorized agents of the said King George the second and the heirs and representatives of the said grantees, in conformity to an act of the parliament of said Kingdom of Great Britain, entitled, "An act for establishing an agreement with seven of the lords proprietors of Carolina for the surrender of their title and interest in that Province to his majesty," for and in consideration of the sum of twenty-two thousand five hundred pounds of the money of Great Britain, paid to the said heirs and representatives of the said seven of the lords proprietors, by the said agent of the said King, sold and surrendered to his said majesty, King George the second, all their right of soil, and other privileges to the said granted territory; which deed of indenture was duly executed and was enrolled in the chancery of Great Britain, and there remains in the chapel of the rolls. That afterwards, on the ninth day of December, one thousand, seven hundred and twenty-nine, his said majesty, George the second, appointed Robert Johnson, Esq. to be Governor of the Province of South Carolina, by a commission under the great seal of the said Kingdom of Great Britain, in which commission the said Governor Johnson is authorized to grant lands within the said Province, but no particular limits of the said Province is therein defined.

And the jury further find that the said Governor of South Carolina did exercise jurisdiction in and over the said colony of South Carolina under the commission aforesaid, claiming to have jurisdiction by force thereof as far southward and westward as the southern and western bounds of the aforementioned grant of Carolina by King Charles the second, to the said lords proprietors, but that he was often interrupted therein and prevented therefrom in the southern and western parts of said grants by the public enemies of the King of Great Britain, who at divers times [p*97] had actual possession of the southern and western parts aforesaid. That afterwards the right honourable Lord Viscount Percival, the honourable Edward Digby, the honourable George Carpenter, James Oglethorpe, Esq. with others, petitioned the lords of the committee of his said majesty's Privy Council for a grant of lands in South Carolina, for the charitable purpose of transporting necessitous persons and families from London to that Province, to procure there a livelihood by their industry, and to be incorporated for that purpose; that the lords of the said Privy Council referred the said petition to the Board of Trade, so called, in Great Britain, who, on the seventeenth day of December, in the year of Our Lord one thousand seven hundred and thirty, made report thereon, and therein recommended that his said majesty would be pleased to incorporate the said petitioners as a charitable society, by the name of "The Corporation for the purpose of establishing charitable colonies in America, with perpetual succession." And the said report further recommended that his said majesty be pleased "to grant to the said petitioners and their successors for ever, all that tract of land in his Province of South Carolina, lying between the rivers Savannah and Alatamaha, to be bounded by the most navigable and largest branches of the Savannah, and the most southerly branch of the Alatamaha." And that they should be separated from the Province of South Carolina, and be made a colony independent thereof, save only in the command of their militia. That afterwards, on the twenty-second day of December, one thousand seven hundred and thirty-one, the said board of trade reported further to the said lords of the Privy Council, and recommended that the western boundary of the new charter of the colony, to be established in South Carolina, should extend as far as that described in the ancient patents granted by King Charles the Second to the late lords proprietors of Carolina, whereby that Province was to extend westward in a direct line as far as the South Seas. That afterwards, on the ninth day of June in the year of Our Lord one thousand seven hundred and thirty-two, his said majesty, George the [p*98] Second, by his letters patent, or royal charter, under the great seal of the said Kingdom of Great Britain, did incorporate the said Lord Viscount Percival and others, the petitioners aforesaid, into a body politic and corporate, by the name of "The trustees for establishing the Colony of Georgia, in America, with perpetual succession;" and did, by the same letters patent, give and grant in free and common socage, and not in capite, to the said corporation and their successors, seven undivided parts (the whole into eight equal parts to be divided) of all those lands, countries and territories, situate, lying and being in that part of South Carolina in America which lies from a northern stream of a river there commonly called the Savannah, all along the seacoast to the southward unto the most southern branch of a certain other great water or river, called the Alatamaha, and westward from the heads of the said rivers respectively in direct lines to the South Seas, and all the lands lying within said boundaries, with the islands in the sea lying opposite to the eastern coast of the same, together with all the soils, grounds, havens, bays, mines, minerals, woods, rivers, waters, fishings, jurisdictions, franchises, privileges, and preeminences within the said territories. That afterwards, in the same year, the right honourable John Lord Carteret, Baron of Hawnes, in the county of Bedford, then Earl Granville, and heir of the late Sir George Carteret, one of the grantees and lords proprietors aforesaid, by deed of indenture between him and the said trustees for establishing the Colony of Georgia in America, for valuable consideration therein mentioned, did give, grant, bargain and sell unto the said trustees for establishing the Colony of Georgia aforesaid, and their successors, all his one undivided eighth part of or belonging to the said John Lord Carteret (the whole into eight equal parts to be divided) of, in, and to the aforesaid territory, seven undivided eight parts of which had been before granted by his said majesty to said trustees.

And the jury further find that one-eighth part of the said territory, granted to the said lords proprietors, and called Carolina as aforesaid, which eighth part belonged [p*99] to Sir George Carteret, and was not surrendered as aforesaid, was afterwards divided and set off in severalty to the heirs of the said Sir George Carteret in that part of said territory which was afterwards made a colony by the name of North Carolina. That afterwards, in the same year, the said James Oglethorpe, Esq. one of the said corporation, for and in the name of and as agent to the said corporation, with a large number of other persons under his authority and control, took possession of said territory, granted as aforesaid to the said corporation, made a treaty with some of the native Indians within said territory, in which, for and in behalf of said corporation, he made purchases of said Indians of their native rights to parts of said territory, and erected forts in several places to keep up marks of possession. That afterwards, on the sixth day of September, in the year last mentioned, on the application of said corporation to the said Board of Trade, they the said Board of Trade, in the name of his said majesty, sent instructions to said Robert Johnson, then Governor of South Carolina, thereby willing and requiring him to give all due countenance and encouragement for the settling of the said Colony of Georgia, by being aiding and assisting to any settlers therein, and further requiring him to cause to be registered the aforesaid charter of the Colony of Georgia, within the said Province of South Carolina, and the same to be entered of record by the proper officer of the said Province of South Carolina.

And the jury further find that the Governor of South Carolina, after the granting the said charter of the Colony of Georgia, did exercise jurisdiction south of the southern limits of said Colony of Georgia, claiming the same to be within the limits of his government; and particularly that he had the superintendency and control of a military post there, and did make divers grants of land there, which lands have ever since been holden under his said grants. That afterwards, in the year of Our Lord one thousand seven hundred and fifty-two, by deed of indenture made between His said Majesty, George the Second, of the one part, and the said trustees for establishing the [p*100] colony in America, of the other part, they the said trustees, for divers valuable considerations therein expressed, did, for themselves and their successors, grant, surrender, and yield up to His said Majesty, George the Second, his heirs and successors, their said letters patent, and their charter of corporation, and all right, title and authority, to be or continue a corporate body, and all their powers of government, and all other powers, jurisdictions, franchises, preeminences and privileges therein, or thereby granted or conveyed to them, and did also grant and convey to His said Majesty, George the Second, his heirs and successors, all the said lands, countries, territories and premises, as well the said one eighth part thereof granted by the said John Lord Carteret to them as aforesaid, as also the said seven eighth parts thereof, granted as aforesaid by His said Majesty's letters patent or charter as aforesaid, together with all the soils, grounds, havens, ports, bays, mines, woods, rivers, waters, fishings, jurisdictions, franchises, privileges and preeminences, within said territories, with all their right, title, interest, claim or demand whatsoever in and to the premises; and which grant and surrender aforesaid was then accepted by His said Majesty for himself and his successors; and said indenture was duly executed on the part of said trustees, with the privity and by the direction of the common council of the said corporation by affixing the common seal of said corporation thereunto, and on the part of His said Majesty by causing the great seal of Great Britain to be thereunto affixed. That afterwards, on the sixth day of August, one thousand seven hundred and fifty-four, His said Majesty, George the Second, by his royal commission of that date under the great seal of Great Britain, constituted and appointed John Reynolds, Esq. to be Captain General and Commander in Chief in and over said Colony of Georgia in America, with the following boundaries, viz., lying from the most northerly stream of a river there commonly called Savannah, all along the sea coast to the southward unto the most southern stream of a certain other great water or river called the Alatahama, and westward from the heads of the said rivers respectively, in straight lines to the South Seas, and all the space, circuit and precinct of [p*101] land lying within the said boundaries, with the islands in the sea lying opposite to the eastern coast of said lands within twenty leagues of the same. That afterwards, on the tenth day of February, in the year of Our Lord one thousand seven hundred and sixty-three, a definitive treaty of peace was concluded at Paris, between his Catholic Majesty, the King of Spain, and his Majesty, George the third, King of Great Britain, by the twentieth article of which treaty, his said Catholic Majesty did cede and guaranty, in full right to his Britannic Majesty, Florida, with fort St. Augustin, and the bay of Pensacola, as well as all that Spain possessed on the continent of North America, to the east or to the south east of the river Mississippi, and in general all that depended on the said countries and island, with the sovereignty, property, possession, and all rights acquired by treaties or otherwise, which the Catholic King and the Crown of Spain had till then over the said countries, lands, places, and their inhabitants; so that the Catholic King did cede and make over the whole to the said King and said Crown of Great Britain, and that in the most ample manner and form.

That afterwards, on the seventh day of October, in the year of Our Lord one thousand seven hundred and sixty-three, His said Majesty, George the Third, King of Great Britain, by and with the advice of his Privy Council, did issue his royal proclamation, therein publishing and declaring that he, the said King of Great Britain, had, with the advice of his said Privy Council, granted his letters patent, under the great seal of Great Britain, to erect within the countries and islands ceded and confirmed to him by the said treaty, four distinct and separate governments, styled and called by the names of Quebec, East Florida, West Florida and Grenada; in which proclamation the said government of West Florida is described as follows, viz., bounded to the southward by the Gulf of Mexico, including all islands within six leagues of the coast from the river Apalachicola to lake Pontchartrain, to the westward by the said lake, the lake Maurepas, and the River Mississippi; to the northward by [p*102] a line drawn due east from that part of the River Mississippi which lies in thirty one-degrees of north latitude, to the river Apalachicola or Catahouchee; and to the eastward by the said river. And in the same proclamation the said government of East Florida is described as follows, viz., bounded to the westward by the Gulf of Mexico and the Apalachicola river; to the northward by a line drawn from that part of the said river where the Catahouchee and Flint Rivers meet, to the source of St. Mary's River, and by the course of the said river to the Atlantic Ocean; and to the east and south by the Atlantic Ocean and the Gulf of Florida, including all islands within six leagues of the seacoast. And in and by the same proclamation, all lands lying between the Rivers Alatamaha and St. Mary's were declared to be annexed to the said Province of Georgia; and that, in and by the same proclamation, it was further declared by the said King as follows, viz.,

That it is our royal will and pleasure for the present, as aforesaid, to reserve under our sovereignty, protection and dominion for the use of the said Indians all the land and territories not included within the limits of our said three new governments, or within the limits of the territory granted to the Hudson's Bay Company, as also all the land and territories lying to the westward of the sources of the rivers which fall into the sea from the west and north-west as aforesaid; and we do hereby strictly forbid, on pain of our displeasure, all our loving subjects from making any purchases or settlements whatever, or taking possession of any of the lands above reserved, without our special leave and license for that purpose first obtained.

And the jury find that the land described in the plaintiff's declaration did lay to the westward of the sources of the rivers which fall into the sea from the west and northwest as aforesaid. That afterwards, on the twenty-first day of November, in the year of Our Lord one thousand seven hundred and sixty-three, and in the fourth year of the reign of said King George the Third, he the said King, by his royal commission under the great seal of Great Britain, did constitute and appoint [p*103] George Johnstone, Esq. Captain General and Governor in Chief over the said Province of West Florida in America; in which commission the said Province was described in the same words of limitation and extent, as in said proclamation is before set down. That afterwards, on the twentieth day of January, in the year of Our Lord one thousand seven hundred and sixty-four, the said King of Great Britain, by his commission under the great seal of Great Britain, did constitute and appoint James Wright, Esq. to be the Captain General and Governor in chief in and over the Colony of Georgia, by the following bounds, viz., bounded on the north by the most northern stream of a river there commonly called Savannah, as far as the heads of the said river; and from thence westward as far as our territories extend; on the east, by the sea coast, from the said river Savannah to the most southern stream of a certain other river, called St. Mary; (including all islands within twenty leagues of the coast lying between the said river Savannah and St. Mary, as far as the head thereof;) and from thence westward as far as our territories extend by the north boundary line of our Provinces of East and West Florida.

That afterwards, from the year one thousand seven hundred and seventy-five to the year one thousand seven hundred and eighty-three, an open war existed between the colonies of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, called the United States, on the one part, and His said Majesty, George the Third, King of Great Britain, on the other part. And on the third day of September, in the year of Our Lord one thousand seven hundred and eighty-three, a definitive treaty of peace was signed and concluded at Paris by and between certain authorized commissioners on the part of the said belligerent powers, which was afterwards duly ratified and confirmed by the said two respective powers, by the first article of which treaty, the said King George the Third, by the name of his Britannic Majesty, acknowledged the aforesaid United [p*104] States to be free, sovereign and independent States; that he treated with them as such, and for himself, his heirs and successors, relinquishes all claim to the government, propriety and territorial rights of the same, and every part thereof; and by the second article of said treaty, the western boundary of the United States is a line drawn along the middle of the River Mississippi, until it shall intersect the northernmost part of the thirty-first degree of north latitude; and the southern boundary is a line drawn due east from the determination of the said line, in the latitude of thirty-one degrees north of the equator, to the middle of the River Apalachicola or Catahouchee; thence along the middle thereof to its junction with the Flint River; thence straight to the head of St. Mary's River; and thence down along the middle of St. Mary's River to the Atlantic Ocean.

And the jury further find that in the year of Our Lord one thousand seven hundred and eighty-two, the Congress of the United States did instruct the said commissioners, authorized on the part of the United States to negotiate and conclude the treaty aforesaid that they should claim in this negotiation, respecting the boundaries of the United States that the most northern part of the thirty-first degree of north latitude should be agreed to be the southern boundary of the United States, on the ground that that was the southern boundary of the Colony of Georgia; and that the River Mississippi should be agreed to be the western boundary of the United States, on the ground that the Colony of Georgia and other colonies, now States of the United States, were bounded westward by that river; and that the commissioners on the part of the United States did, in said negotiation, claim the same accordingly, and that, on those grounds, the said southern and western boundaries of the United States were agreed to by the commissioners on the part of the King of Great Britain. That afterwards, in the same year, the Legislature of the State of Georgia passed an act declaring her right, and proclaiming her title to all the lands lying within her boundaries to the River Mississippi. And in the year of Our Lord, one thousand seven hundred [p*105] and eighty five, the Legislature of the said State of Georgia established a county, by the name of Bourbon, on the Mississippi, and appointed civil officers for said county, which lies within the boundaries now denominated the Mississippi territory; that thereupon a dispute arose between the State of South Carolina and the State of Georgia concerning their respective boundaries, the said States separately claiming the same territory; and the said State of South Carolina, on the first day of June, in the year of Our Lord one thousand seven hundred and eighty-five, petitioned the Congress of the United States for a hearing and determination of the differences and disputes subsisting between them and the State of Georgia, agreeably to the ninth article of the then Confederation and perpetual Union between the United States of America; that the said Congress of the United States did thereupon on the same day resolve that the second Monday in May then next following should be assigned for the appearance of the said States of South Carolina and Georgia, by their lawful agents, and did then and there give notice thereof to the said State of Georgia, by serving the Legislature of said State with an attested copy of said petition of the State of South Carolina, and said resolve of Congress. That afterwards, on the eighth day of May, in the year of Our Lord one thousand seven hundred and eighty-six, by the joint consent of the agents of said States of South Carolina and Georgia, the Congress resolved that further day be given for the said hearing, and assigned the fifteenth day of the same month for that purpose. That afterwards, on the eighteenth day of May aforesaid, the said Congress resolved that further day be given for the said hearing, and appointed the first Monday in September, then next ensuing, for that purpose. That afterwards, on the first day of September then next ensuing, authorized agents from the States of Carolina and Georgia attended in pursuance of the order of Congress aforesaid, and produced their credentials, which were read in Congress, and there recorded, together with the acts of their respective legislatures, which acts and credentials authorized the said agents to settle and compromise all the differences [p*106] and disputes aforesaid, as well as to appear and represent the said States respectively before any tribunal that might be created by Congress for that purpose, agreeably to the said ninth article of the Confederation. And in conformity to the powers aforesaid, the said commissioners of both the said States of South Carolina and Georgia, afterwards, on the 28th day of April, in the year of Our Lord one thousand seven hundred and eighty-seven, met at Beaufort, in the State of South Carolina, and then and there entered into, signed, and concluded a convention between the States of South Carolina and Georgia aforesaid. By the first article of which convention it was mutually agreed between the said States that the most northern branch or stream of the River Savannah from the sea or mouth of such stream to the fork or confluence of the Rivers then called Tugaloo and Keowee; and from thence the most northern branch or stream of said River Tugaloo, till it intersects the northern boundary line of South Carolina, if the said branch or stream of Tugaloo extends so far north, reserving all the islands in the said Rivers Savannah and Tugaloo, to Georgia; but if the head, spring, or source of any branch or stream of the said River Tugaloo does not extend to the north boundary line of South Carolina, then a west course to the Mississippi, to be drawn from the head, spring, or source of the said branch or stream of Tugaloo River, which extends to the highest northern latitude, shall forever thereafter form the separation, limit, and boundary between the States of South Carolina and Georgia. And by the third article of the convention aforesaid, it was agreed by the said States of South Carolina and Georgia that the said State of South Carolina should not thereafter claim any lands to the eastward, southward, southeastward, or west of the said boundary above established; and that the said State of South Carolina did relinquish and cede to the said State of Georgia all the right, title, and claim which the said State of South Carolina had to the government, sovereignty, and jurisdiction in and over the same, and also the right and preemption of soil from the native Indians, and all the estate, property, and claim which the said State of South Carolina had in or to the said lands. [p*107]

And the jury further find that the land described in the plaintiff's declaration is situate southwest of the boundary line last aforesaid; and that the same land lies within the limits of the territory granted to the said lords proprietors of Carolina, by King Charles the second, as aforesaid, and within the bounds of the territory agreed to belong and ceded to the King of Great Britain, by the said treaty of peace made in seventeen hundred and sixty-three, as aforesaid; and within the bounds of the United States, as agreed and settled by the treaty of peace in seventeen hundred and eighty-three, as aforesaid; and north of a line drawn due east from the mouth of the said River Yazoos, where it unites with the Mississippi aforesaid. That afterwards, on the ninth day of August, in the year of Our Lord one thousand seven hundred and eighty-seven, the delegates of said State of South Carolina in Congress moved that the said convention, made as aforesaid, be ratified and conformed, and that the lines and limits therein specified be thereafter taken and received as the boundaries between the said States of South Carolina and Georgia; which motion was by the unanimous vote of Congress committed, and the same convention was thereupon entered of record on the journals of Congress; and on the same day, John Kean and Daniel Huger, by virtue of authority given to them by the Legislature of said State of South Carolina, did execute a deed of cession on the part of said State of South Carolina, by which they ceded and conveyed to the United States, in Congress assembled, for the benefit of all the said States, all their right and title to that territory and tract of land included within the River Mississippi, and a line beginning at that part of the said River which is intersected by the southern boundary line of the State of North Carolina; and continuing along the said boundary line, until it intersects the ridge or chain of mountains which divides the eastern from the western waters; then to be continued along the top of the said ridge of mountains, until it intersects a line to be drawn due west from the head of the southern branch of the Tugaloo River to the said mountains, and thence to run a due west course to the River Mississippi; which deed of cession was [p*108] thereupon received and entered on the journals of Congress, and accepted by them.

The jury further find that the Congress of the United States did, on the sixth day of September, in the year of Our Lord one thousand, seven hundred and eighty, recommend to the several States in the Union having claims to western territory to make a liberal cession to the United States of a portion of their respective claims for the common benefit of the Union. That afterwards, on the ninth day of August, in the year of Our Lord one thousand seven hundred and eighty-six, the said Congress resolved that, whereas the States of Massachusetts, New York, Connecticut, and Virginia had, in consequence of the recommendation of Congress on the sixth day of September aforesaid, made cessions of their claims to western territory to the United States in Congress assembled for the use of the United States, the said subject be again presented to the view of the States of N. Carolina, S. Carolina and Georgia, who had not complied with so reasonable a proposition, and that they be once more solicited to consider with candour and liberality the expectations of their sister States, and the earnest and repeated applications made to them by Congress on this subject. That afterwards, on the twentieth day of October, one thousand seven hundred and eighty-seven, the Congress of the United States passed the following resolve, viz., that it be and hereby is represented to the States of North-Carolina and Georgia that the lands, which have been ceded by the other States in compliance with the recommendation of this body, are now selling in large quantities for public securities; that the deeds of cession from the different States have been made without annexing an express condition that they should not operate till the other States, under like circumstances, made similar cessions; and that Congress have such faith in the justice and magnanimity of the States of North Carolina and Georgia that they only think it necessary to call their attention to these circumstances, not doubting but, upon consideration of the subject, they will fell those obligations which will induce similar cessions, and justify that confidence which has been [p*109] placed in them. That afterwards, on the first day of February, one thousand seven hundred and eighty-eight, and Legislature of said State of Georgia, then duly convened, passed an act for ceding part of the territorial claims of said State to the United States, by which act the State of Georgia authorized her delegates in Congress to convey to the United States the territorial claims of said State of Georgia to a certain tract of country bounded as follows, to-wit: beginning at the middle of the River Catahouchee or Apalachicola, where it is intersected by the thirty-first degree of north latitude, and from thence due north one hundred and forty miles, thence due west to the River Mississippi; thence down the middle of the said River to where it intersects the thirty-first degree of north latitude, and along the said degree to the place of beginning; annexing the provisions and conditions following, to-wit: that the United States in Congress assembled shall guaranty to the citizens of said territory a republican form of government, subject only to such changes as may take place in the Federal Constitution of the United States; secondly that the navigation of all the waters included in the said cession shall be equally free to all the citizens of the United States; nor shall any tonnage on vessels, or any duties whatever, be laid on any goods, wares, or merchandises that pass up or down the said waters, unless for the use and benefit of the United States. Thirdly that the sum of one hundred and and seventy-one thousand and twenty-eight dollars, forty-five cents, which has been expended in quieting the minds of the Indians, and resisting their hostilities, shall be allowed as a charge against the United States, and be admitted in payment of the specie requisition of that State's quotas that have been or may be required by the United States. Fourthly, that in all cases where the State may require defence, the expenses arising thereon shall be allowed as a charge against the United States, agreeably to the Articles of Confederation. Fifthly that Congress shall guaranty and secure all the remaining territorial rights of the State, as pointed out and expressed by the definitive treaty of peace between the United States and Great Britain, the convention between the said [p*110] State and the State of South Carolina, entered into the twenty-eighth day of April, in the year of Our Lord one thousand seven hundred and eighty-seven, and the clause of an act of the said State of Georgia, describing the boundaries thereof, passed the seventeenth day of February, in the year one thousand seven hundred and eighty-three, which act of the said State of Georgia, with said conditions annexed, was by the delegates of said State in Congress presented to the said Congress, and the same was, after being read, committed to a committee of Congress; who, on the fifteenth day of July, in the said year one thousand seven hundred and eighty-eight, made report thereon to Congress, as follows, to-wit:

The committee, having fully considered the subject referred to them, are of opinion that the cession offered by the State of Georgia cannot be accepted on the terms proposed; first, because it appears highly probable that, on running the boundary line between that State and the adjoining State or States, a claim to a large tract of country extending to the Mississippi, and lying between the tract proposed to be ceded and that lately ceded by South Carolina will be retained by the said State of Georgia; and therefore the land which the State now offers to cede must be too far removed from the other lands hitherto ceded to the Union to be of any immediate advantages to it. Secondly, because there appears to be due from the State of Georgia, on specie requisitions, but a small part of the sum mentioned in the third proviso or condition before recited; and it is improper in this case to allow a charge against the specie requisitions of Congress which may hereafter be made, especially as the said State stands charged to the United States for very considerable sums of money loaned. And, thirdly, because the fifth proviso or condition before recited contains a special guaranty of territorial rights, and such a guaranty has not been made by Congress to any State, and which, considering the spirit and meaning of the Confederation, must be unnecessary and improper. But the committee are of opinion that the first, second, and fourth provisions, before recited, and also the third, with some variations, may be admitted; and that, should the said State extend the bounds of her cession, [p*111] and vary the terms thereof as herein after mentioned, Congress may accept the same. Whereupon they submit the following resolutions: That the cession of claims to western territory, offered by the State of Georgia, cannot be accepted on the terms contained in her act passed the first of February last. That in case the said State shall authorize her delegates in Congress to make a cession of all her territorial claims to lands west of the River Apalachicola, or west of a meridian line running through or near the point where that River intersects the thirty-first degree of north latitude, and shall omit the last proviso in her said act, and shall so far vary the proviso respecting the sum of one hundred and seventy-one thousand four hundred and twenty-eight dollars, and forty-five cents, expended in quieting and resisting the Indians as that the said State shall have credit in the specie requisitions of Congress, to the amount of her specie quotas on the past requisitions, and for the residue, in her account with the United States for moneys loaned, Congress will accept the cession.

Which report being read, Congress resolved that Congress agree to the said report.

The jury further find that in the year of Our Lord one thousand seven hundred and ninety-three, Thomas Jefferson, Esq. then secretary of State for the United States, made a report to the then President of the United States which was intended to serve as a basis of instructions to the commissioners of the United States for settling the points which were then in dispute between the King of Spain and the government of the United States, one of which points in dispute was the just boundaries between West Florida and the southern line of the United States. On this point, the said secretary of State, in his report aforesaid, expresses himself as follows, to-wit:

As to boundary that between Georgia and West Florida is the only one which needs any explanation. It (that is, the court of Spain) sets up a claim to possessions within the State of Georgia, founded on her (Spain) having rescued them by force from the British during the late war. The following view of that subject seems to admit of no reply. The several States now composing the United [p*112] States of America were, from their first establishment, separate and distinct societies, dependent on no other society of men whatever. They continued at the head of their respective governments the Executive Magistrate who presided over the one they had left, and thereby secured in effect a constant amity with the nation. In this stage of their government their several boundaries were fixed, and particularly the southern boundary of Georgia, the only one now in question, was established at the thirty first degree of latitude, from the Apalachicola westwardly. The southern limits of Georgia depend chiefly on, first, the charter of South Carolina, &c. Secondly, on the proclamation of the British King, in one thousand seven hundred and sixty-three, establishing the boundary between Georgia and Florida, to begin on the Mississippi, in thirty-one degrees of north latitude, and running eastwardly to the Apalachicola, &c. That afterwards, on the seventh day of December, of the same year, the commissioners of the United States for settling the aforesaid disputes, in their communications with those of the King of Spain, express themselves as follows, to-wit:

In this stage of their (meaning the United States) government, the several boundaries were fixed, and particularly the southern boundary of Georgia, the one now brought into question by Spain. This boundary was fixed by the proclamation of the King of Great Britain, their chief magistrate, in the year one thousand seven hundred and sixty-three, at a time when to other power pretended any claim whatever to any part of the country through which it run. The boundary of Georgia was thus established: to begin in the Mississippi, in latitude thirty-one north, and running eastward to the Apalachicola,

&c. From what has been said, it results, first that the boundary of Georgia, now forming the southern limits of the United States, was lawfully established in the year seventeen hundred and sixty-three. Secondly, that it has been confirmed by the only power that could at any time have pretensions to contest it.

That afterwards, on the tenth day of August, in the year 1795, Thomas Pinckney, Esq. minister plenipotentiary [p*113] of the United States at the Court of Spain, in a communication to the Prince of Peace, Prime Minister of Spain, agreeably to his instructions from the President of the United States on the subject of said boundaries, expresses himself as follows, to-wit:

Thirty-two years have elapsed since all the country on the left or eastern bank of the Mississippi, being under the legitimate jurisdiction of the King of England that sovereign thought proper to regulate with precision the limits of Georgia and the two Floridas, which was done by his solemn proclamation, published in the usual form, by which he established between them precisely the same limits that, near twenty years after, he declared to be the southern limits of the United States, by the treaty which the same King of England concluded with them in the month of November, seventeen hundred and eighty two.

That afterwards, on the 27th day of October, in the year seventeen hundred and ninety-five, a treaty of friendship, limits and navigation was concluded between the United States and his Catholic Majesty the King of Spain, in the second article of which treaty it is agreed that the southern boundary of the United States, which divides their territory from the Spanish colonies of East and West Florida, shall be designated by a line beginning on the River Mississippi, at the northernmost part of the thirty-first degree of north latitude, which from thence shall be drawn due east to the middle of the River Apalachicola or Catahouchee, thence along the middle thereof to its junction with the Flint, thence straight to the head of St. Mary's River, and thence down the middle thereof to the Atlantic Ocean.

But whether, upon the whole matter, the State of Georgia, at the time of passing the act aforesaid, entitled as aforesaid, as mentioned by the plaintiff, in his assignment of the breach in the fourth count of his declaration, was seised in fee simple of all the territories and tenements aforesaid, and of all the soil thereof, subject only to the extinguishment of the Indian title [p*114] to part thereof, the jury are ignorant, and pray the advisement of the court thereon; and if the court are of opinion that the said State of Georgia was so seised at the time aforesaid, then the jury find that the said State of Georgia, at the time of passing the act aforesaid, entitled as aforesaid, as mentioned by the said Fletcher, in his assignment of the breach in the fourth count of his declaration, was seised in fee simple of all the territories and tenements aforesaid, and of all the soil thereof, subject only to the extinguishment of the Indian title to part thereof, and the jury thereupon find that the said Peck his covenant aforesaid, the breach whereof is assigned in the plaintiff's fourth count mentioned, hath not broken, but hath kept the same.

But if the court are of opinion that the said State of Georgia was not so seised at the time aforesaid, then the jury find that the said State of Georgia, at the time of passing the act aforesaid, entitled as aforesaid, as mentioned by the said Fletcher, in his assignment of the breach in the fourth count of his declaration, was not seised of all the territories and tenements aforesaid, and of all the soil thereof, subject only to the extinguishment of the Indian title to part thereof, and the jury thereupon find that the said Peck his covenant aforesaid, the breach whereof is assigned in the plaintiff's fourth count mentioned, hath not kept, but broken the same, and assess damages for the plaintiff, for the breach thereof, in the sum of three thousand dollars, and costs of suit.

Whereupon it was considered and adjudged by the court below that, on the issues on the three first counts, the several pleas are good and sufficient, and that the demurrer thereto be overruled; and on the last issue, on which there is a special verdict that the State of Georgia was seised, as alleged by the defendant, and that the defendant recover his costs. [p*125]