Montgomery et al. v. Ives et al.

often as inclination or policy directed. The king claimed and exercised the right of granting lands, and of dismembering the government at his will. Johnson v. McIntosh, 8 Wheat. 579.

In the proprietary governments, the right of soil, as well as jurisdiction, was vested in the proprietors. Their charters were in the nature of grants; and their limits being fixed by these charters, could not be altered, but by their own consent. These were their rights, but, in point of fact, they were not always respected by the crown.

The power to change the boundaries of the royal provinces seems to be conceded, and is indeed unquestionable. The mode in which the power was to be exercised, is a matter of more doubt. In the case of Harcourt v. Gaillard, 12 Wheat. 527, the court says, "there is no reason to believe that such power had ever been exercised by any means less solemn and notorious, than a public proclamation." But it goes on to add, "this is not the material fact in the case." By others, it has been thought, that the crown had the right to exercise the power in any way it thought fit.

By a royal proclamation issued very soon after the treaty of Paris, and bearing date 7th October, 1763, the northern boundary of West Florida was placed at a line drawn due east from that part of the Mississippi, which lies thirty-one degrees north latitude. This line was thus the boundary between that province and Georgia. By a commission to James Wright, as governor of Georgia, on the 20th of January, 1764, the bounds of Georgia were defined "to extend along the north boundary line of Florida, westward, as far as the British territories extend," which was to the Mississippi river. On the 23d of March, 1764, the board of trade in England, which was intrusted with the management of the affairs of the colonies, represented to the crown, "that it would be well to alter the bounds of West Florida, by an instrument under the great seal, which should declare that province to be bounded on the north by a line drawn from the mouth of the river Yazoo, where it unites with the Mississippi, due east, in order to comprehend settlements." By a commission to Peter Chester, as governor of West Florida, dated the 2d of March, 1770, the

Montgomery et al. v. Ives et al.

boundaries of the province were declared to be altered, so as to correspond with that representation, and to extend north, to the mouth of the Yazoo river. Whether the change was made, prior to that time, in the commissions of Johnson, or of Elliot, is, in this case, a matter of no practical importance. 1 Lourie, State Papers, 28, 44; 5 Hall, Law Journal, 412. Monette says, "the British cabinet extended the limits of Florida, in 1764, to the mouth of Yazoo," but he cites no authority for his position. Hist. Valley Miss. Vol. 1, p. 77.

Did this extension of the boundaries, by commission, give to the British governor of West Florida the right to make the grant in question? The supreme court of the United States, as we have seen, thought that some act more solemn than the commission, was necessary to produce this effect. 12 Wheat. 527. This opinion does not seem to amount to a decision in the case, and we should incline to the belief, that the power might as well be exercised in the shape of a commission, as in any other way. We have been pointed to no limitation, as to the manner of its exercise. In 1496, the king, Henry VII., granted a commission to the Cabots, to discover countries unknown to christian people, and to take possession of them in the name of the king of England. Under this commission, Cabot discovered the continent of North America, and proceeded along the coast, as far south as Virginia. To this discovery, the English trace their title on this continent. 8 Wheat. 576. If a discovery under a commission was a sufficient foundation of title, to all the subsequent acquisitions of the crown, it would seem to follow, that the boundaries of one of the royal provinces might be changed in the same way. Yet it must be admitted, that the exercise of this power, in any form, gave rise to great dissatisfaction in the colonies, and it was by no means confined to its legitimate objects. The exercise of the power was one of the matters complained of in the declaration of independence, and in the address to the people of Quebec. The power was denied by Virginia, in its constitution, and by North Carolina, in her declaration of rights. See 6 Cranch, 117. It is well known that the life and fortunes. of William Penn were well nigh spent, in fruitless and unavailing

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controversies with the crown, in regard to his government of Pennsylvania. William III., by his own power, constituted Maryland a royal government, though it had been a proprietary government, by grant to Lord Baltimore. This arbitrary act was sustained by a legal opinion from Sir John Holt. 3 Bancroft, 31, 44. In this uncertainty, as to the limit and extent of the royal prerogative, it is a relief to find, that a correct decision of this cause, does not require the authoritative determination of this point.

Let us reeur to the proclamation of George III., already referred to, as having been made on the 7th of October, 1763. 5 Hall, Law Journal, 405; 1 Lourie, State Papers, 30. By that proclamation, four distinct and separate governments were created and established within the countries and islands, then recently ceded and confirmed to Great Britain, by the treaty of Paris. These were Quebec, East Florida, West Florida, and Grenada. The limits of each of these were precisely defined. We have no concern with any of them but West Florida, and of this, it is enough to say, that its northern boundary was fixed at latitude 31° north. This proclamation then goes on to declare, among other things, "that it is just, and reasonable, and essential to our interest, and the security of our colonies, that the several nations or tribes of Indians, with whom we are connected, and who live under our protection, should not be molested or disturbed, in the possession of such parts of our dominions and territories, as not having been ceded to, or purchased by us, are reserved to them, or any of them, as their hunting grounds."

It then goes on to declare, that no governor, in any of said provinces, shall presume, "upon any pretence whatever, to grant warrants of survey, or pass any patents for lands, beyond the bounds of their respective governments, as described by their commissions." It farther declares, "that, for the present, all the lands not included within the limits of said new governments, shall be reserved under the sovereignty, protection and dominion of the crown, and forbids all purchases and settlements beyond those limits, without special leave and license first obtained." It goes on still farther to declare a principle which seems to have

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been adhered to ever since, "that no private person do make purchase of any land from any Indians, but that the same shall be purchased only for the government, in the name of the sovereign, at some public meeting of the Indians." This principle, the offspring of a just and enlightened policy, became incorporated into the intercourse of England, with the Indian tribes, and has been adopted and pursued by our own government, in all its transactions with them.

The Indian title to the country in which this tract of land lies, was not then extinguished. In point of fact, it was not extinguished until May, 1777, when the Choctaws relinquished their title to it, by a treaty at Mobile with the British superintendent of Indian affairs. This is the relinquishment referred to in the act of the legislature of Georgia, creating the county of Bourbon, in 1785; and it was confirmed by the treaty between those Indians, and the United States, at Hopewell, on the 3d of January, 1786. See 5 Hall, Law Journal, 363-390; United States Stat. at Large, Vol. 7, p. 21, Indian Treaties. The country embraced in the relinquishment extended from the mouth of the Yazoo, down the Mississippi, till it intersects the 31st degree of north latitude, and reached in the interior at the beginning, some fifteen, and at the lower end some sixty miles. Unless we hold that the extension of the limits of Florida, by the commission to her governor, which took place some years before this relinquishment by the Indians, abrogate the provision in the proclamation against grants of land to which the Indian title had not been extinguished, to the extent of the new bounds, we must hold that the grant to Campbell, in 1772, had in itself no intrinsic validity, because the lands were not subject to be granted, until their title was relinquished. On this part of the proclamation fo 1763, the Supreme Court of the United States say, "This reservation is a suspension of the powers of the royal governor, within the territory reserved." Fletcher v. Peck, 6 Cranch, 142. It is because of this suspension, which existed at the date of this grant, that we think it has no intrinsic validity. It is an established principle in our jurisprudence, that a grant of land on which the Indian title has not been extinguished, is void. Danforth v. Wear, 9 Wheat. 676.

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In the war between the French and the Natchez tribe of Indians, which terminated about the year 1730, in the extinction of that tribe, the Choctaws were the allies of the French, and gave them very efficient aid. It is probable from the fact of the treaty made by the British with them at Mobile, in 1777, before mentioned, that they succeeded to and occupied the hunting grounds of the Natchez, in virtue of the conquest. They do not appear to have been ceded to any one. 1 Martin's Hist. Louisiana, 280-287; 1 Monette, 274. Be this as it may, when the prohibition on the governor of West Florida, to grant lands beyond the limits of his province as then fixed, is established in 1763, it becomes incumbent on those claiming under his grant, to show that the prohibition had been removed.

This view derives support from the fact, that congress, in the act passed to carry the cession made by Georgia into effect, directs that those persons who had obtained, either from the British government of West Florida, or the Spanish government, any warrant or order of survey for lands in said territory, to which the Indian title had been extinguished, should be confirmed therein. The inference is, that, unless the Indian title had been extinguished at the time the warrant or order was issued, there was to be no confirmation. The farther inference is, that, in the opinion of congress, no grant would have been made of land to which the title was not extinguished at the time, or if made, that it would not be valid. The same act of congress, also, provides for the survey and sale of the lands in said. territory, to which the Indian title had been extinguished, but carefully withholds from the operation of the law, all such lands as the Indians had not ceded. The treaty of cession, between Georgia and the United States, itself provides, that the latter government shall extinguish the Indian title to all the lands in Georgia. By reason of this principle and of this policy, a large portion of the lands in this State have been in the occupancy of the Indians, and withheld from sale until a recent period.

There is another ground on which this conclusion may rest with equal security. The claimants under both the grants involved in this controversy, submitted them to the Board of Com