Adams Papers

To John Adams from Joseph Barrell, 30 October 1798

Boston 30th. Octr. 1798

To the President of the United States—

The Subscribers Directors of a Company called the New England Mississippi Land Company beg leave humbly to represent, That the Congress of the United States having by Law authorized the President to appoint Commissioners to settle all interfering Claims of the United States, and the State of Georgia, to Territory situated West of the River Chatahouchee North of the thirty first Degree of North Latitude, and South of the Cession made to the United States by South Carolina &c. &c.

They conceive it to be their Duty to give formal Notice of the Title of themselves and their associates to a part of the Land which is probably contemplated in that Law, and of the foundation on which their title rests.—It is well known that the Legislature of Georgia on the 7th day of January 1795 passed an Act for selling sundry tracts of Land considered as lying within the limits of Georgia, and that one certain Tract bounded as follows—Beginning on the River Mississippi, at the place where the Latitude of 31˚18˝ North of the Equator intersects the Same, thence a due East Course to the Middle of the Donor Tom Bigby River thence up the middle of the said River to where it intersects the Latitude of 32˚40˝ North of the Equator; thence a due West Course along the Georgia Company’s line, to the River Mississippi; thence down the middle of the same to the place of beginning was thereby disposed of to Nicholas Long and others called the Georgia Mississippi Company, and that in pursuance thereof the then Governor of Georgia made a Grant of the said Tract of Land to the said Nicholas Long and others.—

These Grantees sent Agents to Boston with a certified Copy of said Act, and the Grant aforesaid from the Governor, and the Subscribers with many others purchased the same Tract of Land of the Grantees.—If any unfair measures had been pursued to obtain the Act aforesaid, the purchasers were altogether ignorant of them—they placed confidence in the solemn public Acts of the constituted Authorities of Georgia.—It is unnecessary to mention their astonishment, when they heard that these solemn Acts had been declared void by a subsequent Legislature.—The purchasers however conceive that their Right to the Land in question must remain where it was, before the Act last mentioned was made, and therefore that Georgia has not now any right or Interest in the Land having disposed of it originally to Nicholas Long and others who sold the same to them and consequently that the United States cannot derive any right to the same land from Georgia by any Cession or Agreement from or with the State of Georgia.—A short abridgement of the principal reasons for this opinion here follows.—

1st. The Act for annulling the Sale cannot operate as repeating the former Act, For a Grant is a Contract, and the Legislature of a State cannot by any law “impair the obligation of Contracts,” The Constitution of the United States forbids this.—If it be admitted then that the Grant ever existed, it is settled that it still exists, But it may be said, that it never did exist, but was originally void for fraud, we say first, that we do not know what any fraud existed. The Repeating Law is no proof of it, for the Legislature is not the proper Tribunal to render Judgement on a question of Fraud.—

Second. We say further that this question cannot be examined in any Court, for the purpose of avoiding the Sale, Tho’ it may be for the purpose of punishing the guilty; For the Fraud suggested is Fraud in the Supreme power of the State, and whose power was supreme as to the subject matter, and whose doings can never be submitted to another tribunal without a Contradiction.—Individuals may have done wrong, and may be punishable, but the Supreme power, the Legislature must be presumed always to have done right, to say that what they did is void, because they did it fraudulently contradicts this necessary presumption.—We say further that we are innocent purchasers without Notice, induced to purchase by Georgia herself, that is, by her public Acts, legislative and executive.—

Cases are not wanting where as Title void at Law for fraud, while resting with the original holder, is good in the hands of an innocent purchaser. how much is the Case Strengthened, when the party that would avoid the Title, by its most Solemn Acts encourages and in fact causes the purchase to be made? Compare this Act with the exercise of Judicial Power.—A Court of Law renders a Judgement corruptly, they may be punished for the Corruption, but can this, or any other Act render the Judgement void? It is conceived to be settled that it cannot; but if the Judgement be not liable to re-examination in the standing course of judicial proceedings, that is, if it be a final Judgement of a Supreme Tribunal, it must remain in full force forever.—We conclude therefore that this attempt of Georgia Legislature to vacate its own Grant by alledging its own Corruption is as in opperative, as it is novel, and that whatever the Title of Georgia was, that title we and our Associates now have.—

But it has been suggested that Georgia did not own the Land, and that therefore nothing was conveyed by her Deed, that the Land being in dispute between the United States and Georgia if it shall appear on the settlement of the controversy that the land belonged to the United States they may still claim; One Answer is that there never was any such Controversy untill the land was sold by Georgia; but on the contrary the United States disavowed all claim in the most public manner; and surely the Government of the United States will not now claim, on the ground that individuals are less able to assert their Rights, than a State would be, as proof that the United States have disavowed all claim, we State that it now appears on the secret Journals of Congress, that they instructed the Commissioners for making the Peace of 1783, to claim this land as a part of the former Colony of Georgia, & furnished them with a variety of Documents to prove this, and that this land was not claimed by the United States, or ceded by Great Britain on any other Ground—We state further that Congress in 1788 treated with Georgia for a Cession of this Country without suggesting any Claim to it, we state further that Messrs Carmichael & Short Commissioners at the Court of Madrid were instructed by the Executive of the present government of the United States in pursuance of a Report of Mr Jefferson then Secretary of State, to claim this land on the ground only of its being a part of Georgia, and that they did so claim it, we say that afterwards at the same Court Mr Pinckney pursuant to his Instructions claimed the Lands as part of Georgia, and obtained on this ground only a Cession of it from Spain by the Treaty of 1795.—We and our Associates were apprized of these Acts of the Government of the United States acknowledging the Title of Georgia and purchased on the faith of them. So that if we loose the land the Conduct of the Government of the United States is the Cause of our Misfortune—In such case it is well known what is the rule of Justice in a Court of Chancery, That Court quiets the purchaser, Chancery Law is prescribed by Congress as the rule of Justice for American Citizens—Will the Government itself refuse to be bound by it? We will before we close state our Title and add some observations on the Claim of the United States, so farr as we can collect it from the Report of a Committee of the Senate in 1797, which is the first and only document that has reduced that claim to any definite shape, but which report as we understand has never been adopted by the Senate.—

We premise that Georgia had the undisputed possession at the time of the sale, The County of Bourbon had been created there by a Law of that State, and the judicial Officers thereof had been appointed, Laws had been made for the disposal of the Lands by that State, and the United States never interposed their Claim, South Carolina alone had disputed the Title of Georgia, the last mentioned State had indeed brought a Suit against Georgia in a Federal Court, as provided under the Confederation of 1781. and Congress so farr from intimating any Claim of the United States had appointed Judges to try the question between the two States. This controversy ended in a solemn settlement between the two States, in which South Carolina ceded all her Claims on this land to Georgia, and this Agreement was a matter of Record in the Court of the United States—Possession then was quietly in Georgia, as farr as any Possession of an unsettled Country can be had, and much farther than it is usually had, clearly then we did not buy a disputed Title—The right to possess seems as clearly to have been in the State of Georgia.—It will not be disputed that before the Province of Georgia was created in 1732 the whole of the Country as farr west as the Mississippi and as farr South as Latitude 31˚ North of the Equator was within the limits of the Province of South Carolina—

The Charter of Georgia took from South Carolina a part of this Country, Vizt. From the Savannah to the Alatamaha and westward from the heads of the said River respectively in direct lines to the South Seas, and made thereof a new Province.—This left a large tract south of Georgia still belonging to South Carolina,—By the Royal Proclamation in 1764 the lands between the St Mary’s and Alatamaha were added to Georgia, this was evidently construed by the British Government to mean all the land belonging to the British Crown lying South of the Chartered limits of Georgia—For the Bounds in Subsequent Commissions to Governors were full Evidence that this was the Construction.—The Treaty of Peace between the United States and Great Britain evidently went on the same Ground; for the United States did not pretend to have any Claims south to 31st Degree of North Latitude and west to the Mississippi, but as being part of the former Province of Georgia which was then to be acknowledged by great Britain as an Independent State.—All the subsequent proceedings of Congress negotiating for a Cession from Georgia have been on the same ground, The late Negotiation and Treaty between the United States and Spain have been on the same Ground.—Mr Geo. Chalmers Secretary to the Board of Trade in his late Communications to the Attorney General of the United States proceeds on the same ground.—It would seem after all these Acts of Great Britain, Spain and the United States that this Construction by this time must be acknowledged to be settled.—But if original Questions are never to be considered as settled by universal consent, we will suppose for the sake of Argument that the Construction of the Proclamation ought to be that only the land lying between the Rivers Alatamaha and St. Mary’s to the heads of those Rivers, and not extending further westward were added to Georgia, the Consequence then certainly is, that the lands not included in this addition to Georgia Remains where they were before the Proclamation; that is within the Limits of South Carolina, The Claim of this State in the Federal Court abovementioned was on this very ground, and South Carolina in the event ceded all her Right to Georgia, So that even on this Supposition the lands did belong to Georgia at the time of the Sale, The question, instead of being whether Georgia owned the Land, seems to be by which of two titles did she own it, by virtue of the Royal Proclamation in 1763 or by a Bargain with South Carolina, we are willing that this question should be settled either way, as our title cannot be effected by it. We have thus stated our title, that Georgia had both the undisputed possession and the right, and that we have fairly purchased, and for a valuable Consideration the title of Georgia. It remains to make a few remarks on the Claims of the United States so farr as it hath come to our knowledge.—

The Report of the Committee of the Senate abovementioned is the only document, which contains any ground on which this is pretended to be founded, so farr as our knowledge extends, it seems truly wonderfull that the government of the United States should so long have slept on this Title, or rather should for a long succession of years have so vigilantly excluded all presumption of it, by the constant Tenor of public Arrangements.—But to proceed, The Report seems to suggest that by the Proclamation of the British King in 1764 all the Lands lying West of the heads of the Rivers that fall from the West and North West into the Atlantic Ocean were taken from the several Colonies, whose Charters before included them or any part of them.—Were it now an original question of Construction, which had never before been decided on, it would appear to us very evident that an impartial Interpreter must say that nothing more was ever intended by this part of the Proclamation, than to prevent Grants of Lands beyond the heads of these Waters being made by the Governors, and to prevent the consequent Scattered Settlement thereof, and perpetual Controversies and hostilities with the native Indians, but that the Bounds of the Colonies were in no wise affected by the provision. But we conceive that the Subsequent conduct of the Government of Great Britain and the United States have virtually settled this question once and again—The subsequent Commissions to Governors of those Colonies contained the same Bounds as before the Proclamation, as the Treaty of 1783. These western Lands were all ceded to the United States by Great Britain as parts of the former Colonies, for on what other ground can it be pretended that they were ceded? with respect to the Conduct of the government of the United States, the whole course of it runs counter to this new and forced Construction.—Cessions of this Country were earnestly sollicited from the Several States, who according to this Construction never owned it, such Cessions were received under the conditions and restrictions which the several States chose to impose.—

The United States according to the Construction contended for before any Cession owned all the Western parts, not only of Georgia, but of the Carolinas and of Virginia and the whole of the States of Kentuckey & Tennessee.

In short the whole Country west of the Alleghany Mountains was the property of the Nation of America by force of the Treaty of Peace in 1783, can any thing be more contrary to the whole course of American Arrangements.—But the Committee of the Senate seem to be sensible, that this newly invented construction of the Proclamation proves too much to prove any thing, and therefore the Report goes on to State a much more limited Claim, and on the other ground it is said that in 1764 the Province of West Florida was enlarged so as to comprehend all the Country as farr west as the Mississippi, and as farr North as a line projected due East from the confluence of the Mississippi & yazoo Rivers, and that this arrangement continued untill the Peace of 1783. and that when by the Treaty of that year Britain ceded it to the United States, that Country as farr North as the line to be projected East as aforesaid was a part of West Florida—But it ought to be remembered that on the same day Great Britain ceded West Florida generally and without Bounds to Spain, so that if this be true, she ceded the same Country both to the United States and Spain on the same day—It ought to be admitted that a Cession from Great Britain to the United States of more than half of West Florida without any imaginable reason & when that Province had never joined in the revolt is monstrously incredible.—True it is that the Board of trade in 1764 did recommend to the British Sovereign to annex the Tract of Land last described to the Province of West Florida by Proclamation, and it is equally true no such Proclamation ever issued—We admit to be true that subsequent Commissions to the Governors of West Florida extended as farr north as that line, probably from a mistake of the officers, thinking the thing done, because it had been recommended by the board of Trade—possibly it might be a temporary arrangement, only untill the truth of the Suggestion from the Government of West Florida, on which this recommendation by the board of Trade might be enquired into.

That representation was utterly false, & made by the then Governor of West Florida in order to enlarge his province and cover some illegal grants, this was probably discovered, and therefore no formal permanent alteration was ever made—Certain it is that the subsequent Conduct of the British Government and especially at the time of making the Treaty of 1783 is in opposition to any such arrangement—But did a Commission to a Governor annul a more notorious & solemn Act by Proclamation? Those of the Committee who hold to the first ground of Claim, stated in the Report must answer the Question in the negative, unless they are willing to assert both sides of a Contradiction—For if a subsequent Commission to a Governor could alter the Bounds of West Florida established by the Proclamation of 1763, and place land within its limits which were not within before, one would think that the Commissions to Governors of other Provinces and of Georgia in particular, which issues subsequent to the same proclamation would give to those Provinces all the Lands within the Bounds mentioned in the Commissions, altho the previous Proclamation should be construed to have taken them away, but even supposing that legally speaking these Commissions to the Governors of West Florida did so alter its Bounds as to take this tract of land from Georgia, what does Equity say ought to be done by the United States, with respect to the purchasers under Georgia?

The principles that ought to govern this question are well settled in Courts of Chancery—The United States have given colour to the Title of Georgia by a Series of public Acts, Confidence in the declarations of the United States has caused us and our associates to purchase, between Individuals in such a Case the Rule is clear, the Purchaser must be quieted. Justice is the same whoever may be the parties—What is the Language of a Claim of the United States after all that has taken place? Did not Respect for the government forbid, we should say it must be this—It is true we claimed of Great Britain as a part of Georgia and for the Use of Georgia, and that we obtained a Cession of it from her on this ground, It is true we claimed it of Spain on the same ground and for the same use, and obtained a Cession from her also; but we falsified. Britain and Spain were deceived; and tho’ we obtained it for Georgia, we will keep it for ourselves to pay us for our management—Every American exclaims with Indignation this is not, cannot be the Language of my Country—We join in the exclamation—The known justice of the American Government forbids it, The thing needs only to be understood.—We have to add that we deeply regret that any difference should exist between the Claims of the United States and our own—Such is our profound Respect for the Government of our Country, that any minor Claim of Right would be abandoned by us on the appearing of such a Competitor—But it is a question which involves the future fate of ourselves and families, many of us have placed our all here in full confidence that the Government of the United States could not be inconsistent with itself—Most anxiously do we wish that the question may be speedily settled—Could an amicable mode of adjustment be pointed out by the Government, we would most readily concur in it, We will submit to partial Sacrafices of what we conceive to be our Right, but we cannot agree to be destroyed to defraud our Creditors, and beggar our Families.—

Joseph Barrell

Marston Watson

Benjn. Joy—


MHi: Adams Papers.

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