FLETCHER v. PECK.

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.

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 -^oyemor was legally empowered to sell and convey the premises, althoughthefacts stated in the plea as inducement, are sufficient to justiiy a direct negative of thé breach assigned.

^The court will not decláre a law to be un**. constitutional; 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 ithin its own 'limits.

ERROR to the circuit court for the district of Massachusetts, in an action of covenant brought by Flecher against Peck*

The first count of the declaration states that Peck, by Kis 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 describedas follows: begin - ningonthe river Mississippi, wherethe 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 siime, thence along the same parallel of latitude a due west course to the Mississippi ; thence down the said river, to thé place of beginning ; the said described tract containing 500,000 a'cres, 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 Grernleaf conveyed to the said N. Prime, by deed dated the 23d of September, 1795, and is1 parcel of that tract which James Gunn, Mathew M‘Allister, George Walker, Zachariah Cox, Jacob Walbufger, 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‘AHister, and George *88Walker 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.”

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 tegisl ature- It the legislature might constitutionally pass such an act; if the act be clothed with all the requi - áite farms of a law, a court, sitting as a eourt of law, cannot sustain a suit between .individuals founded on tl\e 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 its nature a contract, rights have* ves. ,sed under that peal??the law cannot devest those rights,

A party to a contract cannot pronounce its vaíidf a?thou»ii that party be a, sovereign state,

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. Arid farther, that the title to the premisés 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 .breach assigned in the first count was, that at the time the said act of 7th of January, 1795, was Passefo “ the said legislature had no authority tp sell and dispose of the tenements aforesaid, or of any part thereof- in the manner pointed out in the said act.” 1 ■

The 2d count, after stating the covenants iri the deed a® stated in the first count, averred,' that at Augusta, in the said state of Georgia, on the' 7th day of Janua- ] 795., the said James Gunn, Mathew M‘Alli&ter *89and George Walker, promised and assured divers members pf the legislature of the said state theft 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,3nd 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, McAllister ánd 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 prpmise 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 bi)l 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 ;. cmd that the title which the said state of Georgia had in the aforegranted premises at any time whatever 7uas never legally conveyed to. the said Peck, by force of the conveyances aforesaid

A grant is a contract. executed.

A law, annulling conveyances, is unconstitutional, because it is a law impairing the obligation of corftracts, withiij the meaning of the constitution of thfe * United States.

The proclamation of. the ' King of Great Britain in 1763 did not alter the boundaries . of. Geoi'gia.

The nature of the Indian title is not such as to * absolutely repugnant •io seisúré in fee on the' part of the state.

The third count, atter 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, uqder the pretended title of ‘ An act supplementary to an . act entitled arv act for appropriating .a part ef the unloca*90ted 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 aet 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 anulled, 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 pre-emption right, the Indian title to the same.”

The 2d section directs the enrolled law, the grant, andall deeds, contracts, &c. relative to the purchase, to be expunged from the records of the state, &c.

The 3d 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, actiohs.'between individuals for the recovery of money paid upon pretended sales^ &c. ■

The 4th section provides for -the-repayment of-, money, funded stock, &c. which may have been paid into, the treasury,. provided it was then remaining *91therein, and provided the repayment should oe dexnanded within eight months from that -time.

The 5th section prohibits any application to con gresa, or the general government of the United States for the extinguishment of the Indian, claim; and

The 6th 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 m and to any part thereof, was constitutionally and legally impaired, and rendered null and void.”

. The 4th 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 oí 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.

1st 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 followings

Here was inserted the whole constitution, the 16th section of which declares, that the general assembly hall have power to make all laws- and ordinances *92which 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 thatiipon 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 beal of the said state, and under ■the signature of George Matthew’s, 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 hforésaid, which act is in the words following, that is to say,- “ An act supplementary,” Etc.

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 s' ould 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 *93others, (the Georgia Company,) was des.cr.^ed as fob lows: “ 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 Tensctw; 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 thiriy-iour 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 mm.; thence, a due east course to the Don or Tombigby river; thence down the middle of the said river to its Junetion 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 50,000 dollars, the governor was required to issue and sign a grant for the samé, takipg a mortgage to secure the balance, being 200,000 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, MbAllister," 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 read'/ to verify; wherefore, &C.

*94To this plea there was a general demurrer and joinder.

2d plea. To the second count the defendant, “ protesting that the said Gunn, McAllister, and Walker did not make the promises and assurances to divers members pf 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 Hichbortt, nor either of them, had any notice nor knowledge that any such promises and assurances wére 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.

.. 3d plea to the third count was the same as the second plea, with the addition of an averment that Greenleaf, Prince, Phelp^ Hichbora and the defendant were, until and after t|le 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.

4th 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.

*95Upon 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, after-wards, by force of said grant, entered upon and took possession’of said territory, and established within the samé 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 after-wards 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, o« the twenty-sixth day of July, in the *96third year. ,of the reign of his late majesty Qeorge ther second, King of Great Britain, and in the year of our Bord one thousand, seven hundred and twenty-nine, t¡le heirs of legal representatives of all the said grantees, except thosis of Sir George Carteret, by deed of indenture, made between authorized agents of the said King George the - second, and the heirs and representatives pf the, said .grantees, ip conformity to an act of the parliament of said kingdom of Great Britain, entitled, 45 An act for establishing an agreement with seven of the lords proprietors of Carolina- for'the surrender of their title and interest in that provinc.e 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 andrepresentatives 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 after-wards, 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 Go?vernor Johnson is authorized to grant lands within the said province, but no particular limits of the said province iá 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 Ring Charles the second, to the said lords proprietors, but that he was often interrupted therein and prevented therefrom in the southern and Western parts óf said grants by the public enemies of the King óf Great Britain, who at divers times *97hád .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 ¡v gr'ant of lands in South Carolina, lor 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 thp 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 wouid be pleased to incorporate the said petitioners as a charitable society, by the name of “ The Corporation for the purpose of establishing charitable colonies m-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 oi 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 Alat-amaha.” 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 the1 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 boundáry 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 th& *98second, 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 per-' petual successionand 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 sea-coast to the southward unto the most southern branch of a certain other great water or river, called the Alatamkha, and westward from the heads of . the said rivers respectively in direct lines^ to the South Seas, and all the lands dying 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 after-wards, 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, ip, 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 skid territory, granted to the said lords proprietors!, and called Carolina as aforesaid, which eighth part be*99longed 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 after- - wards, in the same year, the said Ja,mes 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 tinder his authority and-control, took possession of said territory, granted as aforesaid to the said corporation, tnade 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 parís of said territory, and erected forts. in several place's to keep up marks of possession. That afterwards, on the sixth day of September, iñ 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 causé 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 after-wards, in tfie 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 *100colony in America of the other part, they the sard 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 á corporate. body, and all their powers of government, and all other powers, jurisdictions, franchises, pre-eminences and privileges therein, or thereby granted dr conveyed to them; and did also grant and convey to his said majesty, George the second, his heirs and successors, all the spid lands, countries, territories and premises, as well the said one eighth part thereof granted by the sá d 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, fishing's, jurisdictions, franchises, privileges and pre-eminences, 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 affix.!, d. 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 *101land lying within the said boundaries, with the islands in. the sea l) ing opposite to the eastern coast of .said lands within twenty leagues of the same. That after-wards, on the tenth day of b ebruarj, 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 the 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 find with the advice of his' privy council, did issue his royal proclamation, therein-publishing and declaring, that he, the said King qf 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 ol Quebec, East Florida, .Wes.t Florida and Grenada; in which proclamation the said government of West Florida is described as follows, via. -Bounded .to the southward by the gulf o( Mexico, including all islands within six leagues of the toast from the river Apalachicola to lake Pontchartrain, to the westward by the said lake, the lake Mat}repas, and the river Mississippi; to the northward by *102a |jne drawn due east from that part of the river Mis» sissippi'which lies in thirty one-degrees of north latítude, to the river Apalachicola or Catahoucheéj 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 gul£ of Mexico and the Apalachicola river? to the northward by a line drawn from that part of the said river where the Catahpuchee 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 sea coast. 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 foY the present,' as aforesaid, to reserve under ohr 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 west-ward of the sources of the rivers which fall into the sea from the west and north-zvest 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 w’hich fall into the sea from the west and north-west as aforesaid- That afterwards, on the twenty-first day of Ndvcmber, 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 éommission under the great seal of Great Britain, did constitute and ap*103point George Johnstone, Esq. captain-general ancj 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, in. said proclamation is 'before set down. That after-wards, 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 coiony of Georgia, by the following bounds, vjz. 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; andfrom 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 ás far as our territories extend by the north boundary line of our provinces of Eqst and West Florida.

That í fterwards, 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- after-wards duly ratified and confirmed by tfife said two respective powers ; by the first article of which treaty, the said King George the third, by the'nameofhisBritannic majesty, acknowledged the aforesaid United *104States to be-free, sovereign and independent states; that he treated with them as such, and tor 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 fQiat river; theuce 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, fhat 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 condude the treaty aioresaid, that they should claim in this negotiation, respecting the boundaries of the United States, that the ;aost northern part of the thirty-first degree of north latitude should be agreed to be the southern boundary of the United Slates,- 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 Gtorgia 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 thos.e grounds the said southern and -western boundaries of the United. Stares were agreed to by the commissioners oh the part of the King of Great Britain. That afterwards, . in the same year, the legislature of the state .of Gebigja passed an act, declaring her right, ■ and. proclaiming her title to all the lands lying within her boundaries to the rivet Missis ■ ipp . And in the year óf our Lord, one thousand seven hundred *105and 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 iies 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 th'e differences' and disputes subsisting between them and the state' of Georgia, agreeably to the ninth article of the then confederation and perpetual pnion 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 óf oür 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 givqn 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 copgress resolved, that further d^y be given for the. said hearing, and appointed the first Monda}' 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 die said agents to settle a,nd comoroiruse all the differences *106and 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 óf our Lord, one thousand seven hundred and eighty-seven, met at Beaufort, ip 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^ was mutually agreed between the said states, that the most northern branch 9r stream of the river Savannah from the sea or mouth óf 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 s.aid river galoo, till'it intersects- the northern boundary line of ■ South Carolina, if the said branch or strepm 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, of source of the said branch or stream of Tugaloo river, which extends to the highest northern latitude, shall for ever 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, south-eastward, or west of the said boundary above established; and that the said state of South Carolina did relinquish and cede to the saidstate of Georgia all the right, title, and claim which the said state of South Carolina had to the govern, ment, sovereignty, and jurisdiction in and over the same, and also the right and pre-emption of soil from the >native Indians, and all the estate, property, and claim, which the said state o.f South Carolina had in or to the said lands.

*107And the jury further find, that the land described iti the plaintiff’s declaration is situate south-west óf 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 pease 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 confirmed, and that the lines and limit's 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 giveii 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 *108thereupon received and entered on the journals of' congress, and accepted by them.

The jury further find, that the congress of the United Srateá 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 clay 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 ; andthat 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 after-wards, on,.the twentieth day of October, one thousand seven hundred and eighty-seven, the congress of the United Stktós 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..p^her 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 cession's; 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 circumstance's, not doubting but, upon consideration of the ■ subject, they will fCel those obligations which will induce sittu-' lar cessions, and justify that confidence which has been-*109placed in them. That afterwards, on the first day of February, one thousand seven hundred and eighty-eight, the legislature of said state of Georgia, then duty 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 'rivet* 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: r 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 he allowed as a .charge against the United States, and be• admitted in payment of the specie requisition óf 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 de finitive treaty of peace between the United States and Great Britain, the convention between the said *110state 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 Sf»id conditions annexed, was by the delegates of Said state in congress presented to the said congress, and the same Vas, after being read, committed to a committee of congíesá; 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' cessiop offered by the state of Georgia cannot be accepted on tfie 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 th'e United States for very con-' siderable 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 mad.e 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, 5 *111.and vary the terms thereof as herein after mentioned, congress may accept the same. Whereupon they submit thé 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 váry 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 shaji have credit in the specie requisitions of congress, to 'the amount of her specie quotas on the past requisitions, and fdr 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 tfie 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 j 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 Uni*112ted Slates of América were, ffotti thyir first establishment, separate and distinct societies, dependent on no other society of men whatever. They continued at ih'e-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 $he 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 esfnblished at the thirty-first degree of latitude, from' \ the Apalachicola westwardly. í he southern limits of Georgia depend chiefly on, first, the charter of South Carolina, Sic. • 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 íunning eastwardiy to the Apalachicola, &c. That after-wards, 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 6f the King of Spain, express themselves as follows, to wit: ‘ In this stage of- their (meaning the United State's) government, thé several boundaries Were fixed, aqd 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 «¡hen Uo other power pretended any claim whatever to any part of the country through which it ru». The boundary of Georgia was thus-established: to begin'inthe Missisippi,'in latitude thirty-one north; and. runniug 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 anil sixty-three.’ Secondly, that it has been confirmed by the only |j)ower that cduld at any time have pretensions to con tes it it.”

That afterwards, on the tenth .day of August, in the year-l?95, Thomas Pinckney, Esq. minister plenijbo*113tentiary of thé United States at the court of Spain, in a communication to the prince of peace,. prime minisbsr of Spain, agreeably to his instructions from the President of the United States on the subject of said, boundaries, expresses himself as follows, to witt “ Thirty-two yearB have elapsed since all the country, on the left or eastern .bank of the Mississippi, being under the legitimate jurisdiction of the King of Em gland, that sovereign thought proper to regulate with precision the limits of Georgia and the two Floridas, which was done by his solemn proclamation, published m the usual form; by which he established between them precisely the same limits that,'near twenty. ye,ars/ 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 Noveno.-, ber, 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 Kjng 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 oi north latitude, which from thence shall be drawn due east to the mid-die 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 hie 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 *114to part thereof, the jury are ignorant, and pray the ad visement 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 coun of his declaration, was seised in fee-simple of all the territories and tenements aforesaid, and of all the sod 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 go seised at the time aforesaid, then the jury find, that the said state of Georgia, at the time, of passing the act afpresaid, 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 ex-tinguishment of the Indian title to part thereof; and the jufy 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 thousánd 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 yras séised, as alleged by the defendant, and that the defenxlant recover his costs.

The plaintiff sued out his writ of error, and the case was twice argued, first by Martin, for the plaintiff in error, and by J. Q. Adams, and R. G. Harper, for the *115defendant, at February term, 1809, and again at. this term by Martin, for the plaintiff,.' and by Harper and Story, for the defendant.

Martin,

for the plaintiff in error.

The first plea is no answer to the first count. The breach of the covenant complained of is, that “ the legislature had no authority to sell and dispose of ” the' land, but the plea is, that '■'■the said Matthews, governor of the said state, was fully and legally empowered to sell and convey" the land. Although the governor had. authority to sell, non constat'that the legislature had.

The sanie objection applies to the second plea; it is an answer to the inducement, not to the point of the plea. The breach assigned in the second count is, “ that the title which the state of Georgia at any tinfe had in the premises was never legally conveyed to the said Peck by force of the conveyances aforesaid.”

The improper influence .upon the members of the legislature was only inducement.

The plea is, the defendant had no notice nor know- . ledge of the improper means used. It is no answer to the breach assigned.

The same objection applies also to the third plea.

It appears upon the special verdict that the state of Georgia never was seised in fee of the lands. They belonged to the crown of Great Britain, and at the revolution devolved upon the United States, and not upon the state of Georgia.

When the colonies of North Carolina and South Carolina were royal colonies, the king limited the boundaries, and disannexed thesé lands from Georgia.

Argument for the defendant in error.

The first fault of pleading is in the declaration. *116The breach of the covenant is not well assigned in the first count. The/covenant is, that the legislature had good right to sell.' The breach assigned is, that the legislature had no authority to sell. Authority and right, are words of a different signification. Right implies an interest: authority is a mere naked power.

But if the breach be well assigned, the plea is a. substantial answer to it, for if the governor derived full power and authority from the legislature to sell, the legislature must have had that power to give. The plea shows the title to be in the state of Georgia.

The objection is only to the form of the plea, which cannot prevail upon a general demurrer.

Two questions arise upon the issue joined upon the 4th plea.

1st. Whether the title was in the state of Georgia ; and, 2d. Whether it was in the United States.

At the beginning of the revolution the lands were within the bounds of Georgia. ' .These bounds were confirmed by the treaty of peace in 1783, and recognised in the treaty with Spain in 1795, and by the cés* sion to the United Shates in 1802.

The United States can have no title but what is derived from Georgia.

The title of Georgia depends upon the facts found in the special verdict.

The second charter granted by George the 2d in 1732, includes these lands, the bounds of that grant being from the Savannah to the Alatamaha, and from the heads of those rivers respectively, in direct lines, to the South Sea.

It is not admitted that the king had a right to enlarge or diminish the boundaries even of royal pro- - vinces.

*117The exercise of that right, even by parliament itself, was one of the violations of right upon which the revolution was founded; as appears by the declaip» tion of independence, the address to the people of Quebec,. and other public documents of the time.

This right, claimed by the king, was denied by Virginia and North Carolina in their constitutions. See the article of the constitution of Virginia respecting the limits of that state, and the 25th section of the declaration of rights of North Carolina, 1 Belsham’s Hist, of Geo. 3d, The Quebec Act, and the Collection of State Constitutions, p, 180.

The right was. denied by the commissioners on the part of the United States, , who formed the treaty, and was given up by Great Britain when the present line was established.

But the proclamation of 1763 did not profess or intend to disannex the western lands from the province of Georgia. The king only declares that it is hife royal will and pleasure for the present, “os aforesaid,” to reserve under his sovereignty, protection and dominion, for the use oi the Indians, 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 he thereby forbids his subjects from making purchasés or settlements, or taking possession of the sanie.

This clause of the proclamation cannot well be understood without the preceding section to which it refers, by the words “ as aforesaid

The preceding clause is, “ that no governor or commander in chief of our other colonies or plantations in America, i. e. (other than the colonies of Quebec, East Florida and West.Florida,) do presume for the present and until our further pleasure be known, to grant warrants Of surveys, or pass patents for any lands beydnd the heads or sources of any’of the’rivers, which fall into the Atlantic ocean from the west or north-west; ar upon any lands whatever which, not having been *118ceded to, or purchased by us,, as aforesaid, are reserved to- the said Indians, or any of them.”

'j'[ien comes the clause in question, which is supposed to have disannexed these lands from-Georgia, as follows: “ And we do further declare it to be 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 temtories lying to the westward of the sources of the rivers which fall into the sea from the west and north-west as aforesaid,” &c.

It was a prohibition to all the governors of all the colonies,, and a'reservation of all the western lands attached to all thé colonies. But it was only a temporary reservation for the use of the Indians.

If this proclamation disannexed these lands from Georgia, it also disannexed all the western lands from all the other colonies. But if they were disannexed by the proclamation, they were reannexed three months afterwards by the commission to Governor Wright, on the 20th of January, 1764.

- It appears by the report of the attorney-general, as. well as by Mr. Chalmers’s observations, that it never was the opinion of the British government that these lands were disannexed by the proclamation. -•

If they were not reannexed before, they certainly were by the treaty of peace.

At. the commencement of the revolution, the lands then belonged to and formed a part of the province of - Georgia.

By the declaration of independence the several states were declared to be free, sovereign and independent states; and the sovereignty of each, not of the whole, was the principle of the revolution; there was no connection 'between them, but that of necessity, and self defence, and, in ivhat manner each should contribute to the *119common cause, was a matter left to the discretion of each of the states. By the second article of the confederation the sovereignty of each state is confirmed, and all the rights of sovereignty are declared to be retained which are not by that instrument expressly delegated to tl\e United States in congress assembled. It provides also that no .state shall be deprived of territory for the benefit .of the United States.

Oii the 25th of February, 1783, the legislature of Georgia passed an act declaring her boundaries, before the definitive treaty of peace.- • This declaration of Georgiá was not contradicted by the United States in any public act.

In 1785, Georgiá passed an act erecting the county ■of Bourbon in that territory ; this produced a dispute with South Carolina, which ended in the acknowledgment of the right of Georgia to these lands. (See the third article of the convention. between South Carolina and Georgia.)

■The same boundaries are acknowledged by the United States in their instructions, given by the secretary of state, Mr. Jefferson, in 1793, to the commissioners appointed to settle the dispute with Spain respecting boundaries.

The United States certainly had no claim át the commencement of the revolution,- nor at the declaration of independence, nor under the articles of confederation.

During the progress of the revolution a demand was made by two or three of the states, that crown lands should be appropriated for. the common defence. But congress never asserted such a right. They only recommended that cessions of territóry should be made by the states for that purpose.

The journals of congress are crowded with proofs of this fact. See journals of congress, 16th September, 1776, vol 2. p. 336. 30th of October, 1776. 15th *120October, 1777, vol. 3. f. 345. 27th October, 1777, vol. 3. p. 363. 22d June, 1778, vol. 4. p. 262. 23d and 25th June, 1778. p, 269. 1779, vol. 5. p. 49. 21st May, 1779, vol. 5. p. 158. 1st March, 1781. Resolution of 1780, vol. 6. p. 123. 12th February, 1781, vol. 7. p. 26. 1st March, 1781. 29th October,. 1782, vol. 8.p. — .

At the treaty of peace, there was no idea of a cession of land to the United States, by Great Britain. The bounds of the United States were-fixed as tljte. bounds of the several states had. been before fixed.. The United States did not claim land for the United States as a nation; they claimed only in right of the individual state.s, Great Britain yielded the principle of the royal right to disannex lands from the colonies, and acquiesced in the principle contended for by the United States, which was the old boundary of the several states. See Chief. Justice. Jay’s opinion in the case of Chisholm v. The State of Georgia, reported in a pamphlet published in 1793.

The United States then had no title by the treaty of peace; She has since* (viz^ in .1788) declined, accepting a cession of the territory from Georgia, n^t because the United States had already a title, but be¡cause the lands were too remote, &c.

There is nothing in the constitution of the United States, which can.give her a title.- By the third section of the fourth article the'claims of particular- states are saved.

The public acts since the adoption of the new constitution are the instructions to the commissioners in 1793, to settle the boundaries with Spain. The treaty with Spain, 27th October, 1795. Thie act of congress of 7th April, 1798, vol. 4. p. 90. The act of 10'th of May, Í800. The remonstrance of Georgia, in December, 1800. And the cession by Georgia to the United States in 1802. All these public acts recognised the title to be id Georgia.

*121If then Georgia had good title on the 7th of January, .1795, the next question is, had the egislature of that state a right to sell ?

By the revolution, all the right and royal prerogatives devolved upon the people of the several states, to be exercised in such manner as' they should prescribe, and by such governments as they should erect. • The right of disposing of the lands belonging to the state naturally devolved upon the legislative body; who were to enact such laws as should authorize the sale and conveyance of them.' The sale its . f was not a legislative act. It was not an act oí sovereignty, but a mere conveyance of title. 2 Tucker’s Bl. Com. 53. 57. Montesquieu, b. 26. c. 15. 2 Dal. 320. 4 Dal, 14. Cooper v. Telfaire. Constitution of Georgia, Art. l, § 16. Digest of Georgia Laws of 7th June, 1777, 1780, 1784, 1785, 1788, 1789, and 1790; '. These show the universal practice of Georgia in this respect.

A doubt has been suggested whether this power extends to lands to which the Indian title has not been extinguished.

What is the Indian title ? It is a mere occupancy for the purpose of. hunting. It is not like our. te-' nures; they have no idea of a title to the soil itself. It is overrun by them, rather than inhabited. It is not a.true and legal possession. Vattel, b. 1. § 81.p. 37. and § 209. b. 2. & 97. Montesquieu, b. 18. c. 12. Smith's Wealth of Nations, b. 5. c. 1. It is a right not to be transferred but extinguished. It a right regulated by treaties, not by deeds of conveyance. It depends upon the law of nations,.not upon municipal right.

Although the power to extinguish this right bv treaty, is vested in congress, yet Georgia had a. right to sell subject to the Indian claim. .The point has tuver been decided in the courts of the United States; because it has never, before been questioned.

The right has been exercised and recognised by all the states.-

*122There liras no objection, to the sale arising from the constitution of Georgia. With regard to state constitutions, it is not necessary that the powers should be expressly granted, however it may be with the constitution of the United States. But it is not constitutional doctrine even a? it applies to the legislature of the United,States.

The old articles of confederation limited the powers' of congress to those expressly granted. But in the constitution of the United States, the word expressly was purposely' rejected. See the Federalist, and Journals of House of Rep. 21st August, 1789. Journal of Senate, 7th September, 1789.

But if the legislature of Georgia could only .ex- . ercise. powers expressly given- they had no power to abrogate the contract.

A question has .been suggested from the bench whether the right which Georgia had before the. extinguishment of the Indian title, is such a right as is susceptible of conveyance,, and whether it can be said to be a title in fee-simple ?

The Europeans found the territory in possession of ■ a rude and uncivilized people, consisting of separate and independent nations. They had no idea of property in- the soil but a right of occupation. A right not individual but national. This is the right gained by conquest. The Europeans always claimed and exercised the right of conquest over the soil. They allowed the former occupants a part, and took to themselves what was not wanted by the. natives. Even Pénn claimed under the right of conquest. He took Under a charter from, the King of England, whosé right was the right of conquest. Hence the feudal tenures in this country. All the treaties with the Indians were the effectof conquest. All the extensive grants have been forced from them by successful war. The conquerors permitted the conquered tribes to occupy part of the land until it should be wanted, for the use of the conquerors. Hence the acts of legislation *123fixing the lines and bounds of the Indian claims; hence the prohibition of individual purchasers, ¡kc.

The rights of governments are allodial. The crown of Great Britain granted lands to individuals, even while the Indian claim existed, and there has never been a question respecting the validity of such grants. When that claim was extinguished, the grantee was always admitted to have acquired a complete title. The Indian title is a mere privilege which does not affect the allodial right.

The legislature of Georgia could not revoke a grant' once executed. It had no right ■ to declare the law void; that is the exercise of a judicial, not a legislative function. It is the province of the judiciary to say • what the law is, or what it was. The legislature can only say what it shall be.

The legislature was forbidden by the constitution of the United States to pass any law impairing the obligation of contract. . A grant'is a contract executed,' and it creates also ap implied executory contract, which is, that the grantee shall continue to enjoy the thing granted according to the terms of the gram"

The validity of a law cannot be questioned because undue influence may have been used in obtaining it. However improper it may be, and however severely the offenders may be punished, if guilty of bribery, yet the grossest corruption will not authorize a judicial tribunal in disregarding the law.

Tins would open a source of litigation which could never be closed. The law would be differently decided by different juries; innumerable perjuries would be committed, and inconceivable confusion would ensue.

But the parties how before the court are innocent of the fraud, if any has been practised. They were bona fide purchasers, for a valuable consideration, without notice of .fraud. They cannot be affected by it.

*124Martin, in reply.

All the .western lands of the royal governments were wholly disannexed from the colonies, and .fcserved lor the use of the Indians. t Georgia never -had title in those- lands. It is true that Great Britain did undertake to ¿xtend the- bounds of the royal provinces.-1 he right was not denied, but the purpose for which it was executed.

By the proclamation", if offenders should escape into those territories, they are to be arrested by the military forcé and sent into the colony for trial.

In Governor Wright’s commission the western boundary of-the.colony is not defined. The jury has not found whether, the lands were within Governor Wright’s commission.

As to the Indian title.

The rOyal provinces were, not bodies politic for the purpose of holding lands. ' '1 he title of the lands was in the crown.. 1’here is nd law authorizing the several state's to transfer théir right subject to the Indian title. It was only á right of pre-emption which the crown had. 1’his right was not by the treaty ceded to Georgia, but to the United States. The land when purchased of the Indians is to be purchased for the benefit of. the United States. There was only a possibility •that the United States'would purchase for the benefit of Georgia. But a mere possibility cannot be sold or granted. .

The declarations and claims of Georgia coúld not affect the rights of the United States.

■ An attempt was made in congress to establish the principle that the land'belonged to the U diced ■ States ; but the advoeates of that doctrine were overruled by a majority.' This, however, did not decide the question of right.

*125The states which advocated that principle did not think proper to refuse to join the confederacy because it was not inserted among the artic? ,s of confederation, but they protested'against their assent to the union being -taken as evidence of their abandonment of the principle.

Nor is the assent of congress to the commission for Settling the bounds between- South Carolina and Georgia, evidence of am acknowledgment, on the part of the United States, that either of those states was entitled to those lands*

March 11,Í80».