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Memorial of the
Directors of the New England Mississippi Land Company, Citizens of the
State of Massachusetts |
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"Memorial of the Directors of the New England
Mississippi Land Company, Citizens of the State of Massachusetts.
January 28, 1814.
Printed by order of the senate of the United States.
Washington City:
Printed by Roger C. Weightman,
1814." |
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"In Senate of the United States.
January 28, 1814.
On motion, by Mr. Hunter,
Ordered. That the following memorial be printed for the use
of the senate.
Attest,
Sam. A. Otis, secretary.
To the honorable the senate and house of representatives of the
United States.
The memorial of the directors of the New England Mississippi Land
Company, citizens of the state of Massachusetts,
Respectfully represents:
That they are under the painful necessity of again
begging the attention of the legislature of their country to their just
claims on a portion of the territory which was ceded to the United States
by the state of Georgia, on the 24th day of April, 1802. That
patents of large tracts of that territory had been made, under an act of
the legislature of Georgia by the supreme executive of that state, and
that the immediate purchasers speedily sold" |
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"the greater part of the same in the eastern
states, very remote from Georgia, are facts which have long been publicly
known, and need not now be repeated. Your memorialists relying on
the most solemn forms of granting land, and the good faith of the supreme
power of an independent state, were of the unfortunate number who paid
very large sums of money, as subsequent purchasers, without notice or
suspicion that the validity of the grants from the state of Georgia was
ever questioned. Under such circumstances they humbly presume that
the universally acknowledged principles of justice and of law must secure
to them all the property that the state of Georgia had in the land thus
purchased.
Your memorialists are not apprised that the title of
the state of Georgia is now questioned by the government of the United
States. The negotiating for, and acceptance of, the aforementioned
cession are some evidence of acquiescence in this title.
But if this be considered as a question, your
memorialists beg leave briefly to state, as proofs of the title of Georgia
to the land under consideration, the following facts: King Charles
the Second, by charter, bearing date 24th March, 1662, created the colony
of Carolina, described therein, as extending from latitude 31 to 36
degrees 30 minutes, north of the equator, and from the Atlantic ocean to
the South sea. About two years after, a second charter was granted
to the same colony, in which the southern boundary is said to be the 29th
degree of north latitude. That the limits of either of these
charters include the land in question, none will deny. Afterwards,
these charters were surrendered, and the former colony was then divided
into two colonies, under the names of North Caro-[lina]" |
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"[Caro]lina and South Carolina, and
commissions were issued to governors of each. No new southern or
western bounds were given to South Carolina by any of these commissions.
The charter of Georgia was afterwards granted, bearing
date June 9, 1732; the lands therein mentioned as forming the new colony
of Georgia, are said to be 'part of South Carolina.' The
southern boundary of the colony of Georgia, by this charter, was the most
southern stream of the river Altamaha, and running westwardly from the
head of said river, in a direct line to the South sea. Much of the
territory of South Carolina was situate south of this line, and also a
great portion of the lands now in dispute. As the charter of Georgia
did not make these a part of that colony, so also there was nothing in
that instrument to take them out of the colony of South Carolina; and the
government of the latter colony exercised jurisdiction there, subsequently
to the granting of the charter of Georgia. More than thirty years
after this charter, viz.: on October 7th, 1763, a proclamation was
issued under the great seal of Great Britain, the object of which was to
divide, under various colonial governments, the territory to which that
nation had acquired an indisputable title, by the treaty of peace with
Spain, bearing date February 10th, 1763. By this proclamation, all
the land lying between the rivers St. Mary and Altamaha, is annexed to
Georgia. This does not necessarily cover the land now in question;
but West Florida is therein bounded north by the 31st degree of north
latitude; and if the disputed land was not added to Georgia, it was not
placed under any colonial government, which was contrary to the manifest
intent of the proclamation. The want of correct maps, probably, is
the true cause of the defect of precision in the bounds." |
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"But whatever might
now be the construction of the proclamation, considered alone, and as an
original question, the subsequent commission which issued, in pursuance
thereof, to James Wright as governor of Georgia, appears to afford a
contemporary construction, of undeniable authority, and to have put the
question at rest. This commission bears date, January 20th, 1764,
three months after the said proclamation, and, with other manifestly
intended to carry it into effect. The colony of Georgia, in this
commission, is bounded as follows, viz.: on the north by the most
northern stream of a river, there commonly called Savannah, as far as the
head of the said river, and from thence westward as far as our territories
extend; on the east by the sea coast, from the said river Savannah to the
most southern stream of a certain other river called St. Mary, including
all islands, within twenty leagues of the coast, lying between the said
rivers Savannah and St. Mary, as far as the head thereof, and from
thence westward as far as our territories extend, by the north boundary
line of our provinces of East and West Florida. It has been
already stated, that this 'north boundary line,' by the proclamation, is
the 31st degree of north latitude.
Your memorialists humbly apprehend, that words cannot
be selected, better calculated to describe the colony of Georgia as of
sufficient extent, both southward and westward, to cover all the land now
in question. If, however, any one can yet harbor doubts, they must
be dissipated when it is considered that if the disputed land was not thus
added to Georgia, it still remained in South Carolina, and that it was
afterwards claimed by the latter state; but on examining the title, the
claim was" |
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"abandoned, or rather, the land was formally
surrendered to Georgia. The proceedings were as follow: on 1st
day of June, 1785, South Carolina petitioned congress for a hearing and
determination of their claim, according to the then existing confederation
of the United States; and on the same day congress appointed a day for the
hearing and gave formal notice to the legislature of Georgia to appear and
answer to the petition of South Carolina. Afterwards, on the 28th
April, 1787, the commissioners of those states concluded a convention at
Beaufort, by which South Carolina relinquished and ceded to Georgia both
the jurisdiction and right of pre emption of soil of the whole tract of
country in which the disputed lands are situate. This convention was
afterwards on the 9th day of August, 1787, entered of record on the
journals of congress, as ascertaining the boundaries between the states of
South Carolina and Georgia. The right of Georgia, having been thus
traced, it now only remains to be added, that actual and indisputable
possession, both of soil and jurisdiction, had been united to this right
long before the grants were made, under which your memorialists claim.
The state of Georgia had erected the county of Bourbon, in this very
territory; had appointed its civil officers; and had made various grants
of land, of great extent; the validity of none of which acts was ever
disputed by the United States, or by any one state, except South Carolina,
whose supposed title Georgia afterwards acquired by cession.
Your memorialists humbly apprehend, that the right of
Georgia, by force of the foregoing proclamation, and the commission to
governor Wright, under the British government, and the right of South
Carolina, if she had any, thus transferred to Georgia, by convention, and
the ratification of" |
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"the whole, by the doings of the congress of
the United States, form a triple cord, too strong to be broken, while any
right in our country shall be held sacred. And when to this is added
the actual, indisputable possession and jurisdiction above-mentioned the
title does appear to our humble apprehension absolutely perfect. All
the right and title derived under these we presume we unite in ourselves,
by virtue of the grant of Georgia.
Your memorialists are apprised, that in the year 1764,
the board of trade in Great Britain proposed, that 'an instrument should
pass, under the great seal, in like manner as was directed in the case of
the extension of the south boundary of Georgia' was, by proclamation,
under the great seal: But no proclamation ever issued to extend the
north boundary of West Florida; probably the imposition was detected in
season to prevent its effects. It seems manifest, that no permanent
arrangement, of this sort, ever took place; for the treaty of peace,
between this country and Great Britain, in 1783, makes our southern limit
the 31st degree of north latitude, and our western limit the river
Mississippi. It appears absurd to suppose, that Great Britain would,
in addition to acknowledging the independence of the revolting colonies,
give them, with-[out] |
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"out compensation, the better part of the
colony of West Florida, which never joined in the revolt. -- The records
of congress show that the ministers of the United States, for making this
treaty of peace, were expressly instructed to claim to the southern and
western bounds aforementioned, on the ground that the colony of Georgia
extended to them. It is not conceivable that Great Britain gave
to the United States the most valuable part of West Florida, without
motive or equivalent, merely because, by a treaty made with Spain at the
same time, this colony was ceded to that government. Provinces are
not ceded by nations without some adequate consideration; and in the
treaty with Spain, Great Britain must have lost just as much as the colony
so ceded was diminished.
Your memorialists beg leave further to represent, that
the aforesaid acceptance and recording of the convention of Beaufort was a
public and formal recognition of the right of Georgia, and that many other
acts of the government of the United States, for a long succession of
years, have also acknowledged it. In the year 1795, our envoy, who
negotiated our present treaty with Spain, was instructed to claim to the
southern and western boundaries aforesaid, on the express ground that the
colony of Georgia extended to them; and it appears from the negotiation,
that he did so claim, and with success. Prior to which, Messrs.
Carmichael and 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 they did so claim it. After the government of the
United States have advocated the right of Georgia, and" |
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"obtained an acknowledgment of its justice, by
solemn treaties, from two foreign nations, at distant periods of time,
your memorialists are unwilling to believe, that congress, in order to
keep the land for the United States, though they claimed it for Georgia,
can be disposed to subvert that very title which they have thus asserted
for a long course of years.
Your memorialists humbly submit to the wisdom of
congress the consequences of now alledging [sic], that at that time, and
also at the time of the treaty of peace, the country southward of the
mouth of the river Yazous, in truth, was a part of West Florida.
Public considerations forbid the further prosecution of this subject.
The principle of justice is settled in chancery, that if the true owner
will give color of title to another, so as to encourage a third person to
purchase of him who has no right, although the true owner may be ignorant
of his own title, yet he shall never claim the land against him who thus
purchases. The aforementioned holding of jurisdiction of the
petition of South Carolina, and calling on Georgia to answer, and
the receiving and recording of the deed of cession, from the former to the
latter, furnish as strong a case of this sort as can be stated. But
this is not a solitary instance of acquiescence in the title of Georgia by
the government of the United States; for a course of years the journals of
congress contain repeated acknowledgments of the title of Georgia, by
resolves, calling on that state to make a cession to the union, without
pretending that the United States had any other claim, than the fitness
that Georgia should cede to the nation, for public purposes, in equal
proportion with the other states.
Your memorialists now beg leave to proceed to" |
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"another consideration, which by some has been
thought to press more heavily on them than the question of the title of
Georgia. It has been said that the grants from Georgia, under which
they claim, were originally void for fraud, or that they have been vacated
by the repealing act, or the amended constitution of Georgia.
Whether the grant was absolutely void for fraud, it is humbly conceived
must be a question for judicial examination, if it can be examined at all.
It is a principle both of law and equity, that fraud is never to be
presumed; such a presumption against the sovereign power of a state would
be doubly improper, without some such regular investigation and proof.
Proof can only be exhibited and weighed, on a formal and impartial trial.
Such an examination has hitherto been solicited by your memorialists,
without success. Whether fraud in the legislature of a state is a
subject for examination before any tribunal, for the purpose of avoiding
the grant, it may not be proper for your memorialists to say; nor will
they attempt to conjecture what proof could be offered of the fact.
Depositions heretofore taken by zealous political partizans [sic], without
any opportunity given to the party interested to cross-examine the
deponents, would hardly be viewed as competent, certainly not as impartial
evidence. The fraud is neither denied nor admitted by your
memorialists; we do not know facts enough to be prepared to do either.
But, were it even admitted, new and momentous questions would present
themselves for consideration. Can a state alledge the fraud of its
own legislature to avoid their grant? What numbers of members must
be proved guilty? To what kind or degree of corrupt motive, in
legislators, is the principle to be limited? Intrigue," |
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"traffic, and popular arts exist, in an
infinity of shapes, and every popular assembly is, perhaps, in some
degree, influenced by them. It is presumed, that most of the sales
of land that have been made in other states, by their legislatures, are
viable, in various degrees, to the very objection that is made to the
sales by Georgia. But it is impossible, in this form, to discuss the
subject. Long established principles, necessary to the very
existence of civil communities, rise on every side to prove, that although
the members are responsible, and may be punished for mal-conduct, yet the
solemn official act of the supreme power of a state cannot be holden void.
If first principles did not forbid it, it is apprehended that some
precedent would exist in history; but it is confidently believed that the
records of civilized society do not furnish an instance in which either an
act of the supreme legislature of a state, or the compact of the sovereign
power has been holden void for the benefit of that state, on account of
their fraud and corruption. But, if it were possible that this
should be done, yet a subsequent legislature seems manifestly incompetent
to this office. The obvious duty of a legislature is to establish
general rules, not to try titles. They may repeal such rules, made
by their predecessors, but cannot rescind their compacts. Even if
this were not the general principle, yet the constitution of the United
States, in express words, prohibits it. It is there ordained, that
no state shall make any law impairing the obligation of contracts.
Similar remarks apply to the attempt to vacate the grants, by the amended
constitution of Georgia. This too is a law, and cannot be so framed
as to 'impair the obligation of contracts.' The constitution of the
United States is declared" |
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"to be 'the supreme law of the land,'
and it is provided, 'that the judges in every state shall be bound
thereby, any thing in the CONSTITUTION or laws of any state to the
contrary notwithstanding.' But if the most despotice effect were to
be allowed to the amended constitution of Georgia, surely it could operate
only on the rights of the citizens of that state, as they alone were
parties to that civil compact; not on the rights of your memorialists, who
were citizens of another state, who purchased, not only long before the
making of this new constitution, but also before the passing of the
repealing act, and who never submitted their rights to the decision of a
convention in Georgia. But your memorialists, from motives of
respect, forbear to press this subject. If the state of Georgia has
been defrauded, we deeply regret it, and are not anxious to defend the
claims of any, who in the least degree have participated in corruption.
We only contend, in behalf of ourselves, that we have committed no error
in giving full faith to the most solemn act of the sovereign power of a
state, when we had no notice that it was wrong. We beg leave
to offer a brief statement on this part of the subject, and will then
cheerfully submit our claims to the consideration of the legislature.
It is believed, that even if gross fraud did exist, and rendered all
accomplices incompetent to claim, it would be immaterial to the rights of
your memorialists, if, in truth, we had no notice of it. This will
be admitted to be equitable, and it has been adjudged at law, that an
assignee, for a valuable consideration, and without notice, is protected
in his purchase, although his assignor obtained his title fraudulently.
When the question is, which of two innocent parties shall suffer a loss,
it is an established rule, that if it happened by" |
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"the negligence of one, or by his placing
confidence in an agent who has betrayed his trust, the party who was thus
negligent, or thus misplaced his confidence, shall bear the consequences.
It seems more reasonable and just that the state of Georgia should suffer
from the alledged corruption of that legislature, which they appointed,
and the members of which are accountable to them, than that innocent
citizens of another state should be punished for respecting the most
solemn acts of that legislature. We have only performed the duty
enjoined by the constitution of the United States, which provides, that 'full
faith and credit shall be given in each state to the public acts,
records, and judicial proceedings of every other state.' The
fact, however, rather than the principle, seems to have been questioned by
those who resist the claims of your memorialists. On this part of
the subject we beg leave to say, that it is physically impossible that we
could have had notice of the repealing act, because it was not passed
until after we had purchased. Thirteen months elapsed from the date
of the letters patent granting the land before the supposed repeal took
place; and in that interval the purchases were made, which have proved so
calamitous to your memorialists.
But it has been suggested, that your
memorialists had notice that such fraud had been practised as authorised
the repealing act. To this we answer, that according to established
rules of reasoning and of common sense, we are entitled to call on the
person making this assertion, for some proof. We hold the negative
side of the question, and a simple negative proposition, from its very
nature, does not admit of direct proof. If it should be said, in
proof, that there was much public altercation in Georgia, immediately
after" |
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"granting the land, and that it is probable
the purchasers heard, from rumor, or from newspapers, that the granting
legislature were charged with corruption, we answer, that no such
inference can fairly be made as to your memorialists, when it is
considered that we lived more than one thousand miles distant from the
place where these things happened; and that there was then no great
commercial connexion between that part of the country and our own.
Newspapers from Georgia are very rarely seen in Massachusetts. Your
memorialists do not know that any persons, except printers, ever read
them. It may, with truth, be affirmed, that the purchasers in
Massachusetts, speaking of them generally, had never heard that any
objections had been made to the grants, but considered them as the
indisputable acts of the supreme power of Georgia. It is believed
that not one of them had enough to excite alarm in any reasonable mind.
Citizens of Georgia seldom visit Massachusetts, and the agents for the
vendors certainly would not have published the difficulties that might
exist in Georgia. But your memorialists beg leave to ask, what was
the utmost we could possibly have known? It was possible for us to
know that the minority charged the majority with corruption; that grants
of the supreme power of the state, which had passed all the forms of law,
were heavily censured by a considerable number of citizens, and that they
joined the minority of the legislature in their accusations. It was
possible that this might have been known, though in truth it was not
known; but it was not possible that secret frauds, practised by members of
the legislature, or by the first purchasers, should have been known,
unless they had published their own turpitude, which is not to be pre-[sumed]" |
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"[pre-]sumed. But, even if the existence
of a dispute had been known, the most proper inference, because the most
respectful, would have been in favor of the purity of the legislature.
Contests of this sort always exist in free governments, respecting lawful
as well as unlawful acts; but it cannot be true, that all confidence in
public acts, and all proceedings under them, are to be suspended as soon
as the discontented and disappointed are able to excite clamor.
Similar charges have existed with respect to national compacts; the
funding system, the assumption of state debts, the purchase of Louisiana
furnish prominent instances of similar popular charges on the national
government. It will hardly be contended that the citizens ought not
to have respected or acted under these, or placed any confidence in their
validity, because many people impeached the motives of the rulers; and it
was not absolutely impossible, that their successors might pass acts
declaring them void. Such an instance, however, had never occurred,
and therefore was not to be apprehended; the acts of the most corrupt
governments of other countries, as well as the acts of American
legislatures, were always holden valid. The purchasers had witnessed
cases precisely similar to that of Georgia. They had even in their
own state, known sales of vast tracts of fertile country, situate about
Genesee river, made to a few individuals, respecting which they had heard
similar charges of corruption; but they had never heard any body suggest
that it was possible to vacate these grants. But the fact, which
most conclusively negatives the suggestion of knowledge of fraud,
practised in Georgia, or of collusion with the original purchasers, is
that your memorialists and their fellow sufferers actually paid, or bound
themselves to pay immense sums" |
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"of money for the title under the grants of
Georgia. We paid, in many instances, double the price for which we
had known some of the most fertile tracts in union to be sold a short time
before by the legislature of Massachusetts, and a higher price than could
at that moment be obtained for some of the best lands in the district of
Maine. Insanity is the only cause, sufficient to account for this
conduct, if we had had any suspicion that the title could be questioned.
Will it be suggested that the considerations mentioned in the deeds were
fictitious, and in truth, never paid? alas! the notorious
distresses of the purchasers spoke a language not to be distrusted.
The records of our judicial courts show the persevering but unsuccessful
efforts of some of the sufferers to avoid payment on the ground that the
title had failed. The walls of our prisons have witnessed their
sighs; some, who before were affluent, have pined and died in penury, and
left families without the means of subsistence, to be supported by the
hand of charity. These and many other facts of public notoriety,
unanswerably refute the suggestions of collusion with the first
purchasers, or knowledge of the title being fraudulent. Your
memorialists beg leave to refer their rulers to the knowledge of those
members of congress who more immediately represent that section of country
where these facts have occurred.
One suggestion has been made, which seems to require
some notice. It has been said, that suspicion arises from the
special nature of the warranty in some of the deeds to the purchasers.
But it is not usual for those who practise collusion and secred fraud, to
suffer evidence of it to appear publicly on the face of their contracts.
The innocence of the purchasers best accounts for their not avoiding this
source of suspicion. The true reason of" |
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"the special nature of this warranty was that
the legislature of the state of Georgia knew the pretence which Spain then
made to the lower part of that tract of country, and had no means of
ascertaining the quantity contained in the several grants, as no correct
surveys thereof had ever been made; and in its granting act it had
expressly provided that the state should not be subject to any suit or
claim, on account of any deductions in hte quantity of said territory, or
on account of any other claims whatsoever. In the sale of so large a
tract of country, it would have been folly in the original purchasers to
have given a general warranty when the state had refused it to them, and
unreasonable in the present claimants to expect it. The repealing
act of Georgia rather produced surprise than anxiety, when the news of it
reached your memorialists. We believed that the measure was so
unprecedented that the state would abandon it. If this should not
happen, we had confidence that our rights would always be protected in the
courts of the United States. When we were informed that a cession
from Georgia to the United States was contemplated, we sent agents to the
seat of government of the union, to give formal notice of our claims to
the commissioners of the United States; these agents on their return
informed your memorialists that they had done this, and that they had also
suggested their intention of presenting a memorial to congress on the
subject; but that the commissioners objected to this measure, alledging,
that to bring the subject into discussion in congress, would thrown
embarrassments in the way of the negotiation with Georgia; but they
engaged if the claimants would omit to interfere, to provide for them a
liberal indemnity by the terms of cession itself. It was impossible
to distrust the assurances of public officers so eminently" |
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"respectable, and the agents were unwilling to
disturb a great public arrangement from desire of making private
emolument, and therefore acceded to this proposal. A reservation for
satisfying claims was accordingly made in the deed of cession, and it was
well understood that the claims of your memorialists were especially
intended to be provided for; and although the reservation was but of a
small part of the lands we had purchased, yet we were assured it would be
so managed as to afford a liberal indemnity to the claimants. We
abandoned our prospects of gain; we placed a liberal confidence in the
justice of the government of our country and believed that nothing
remained but to wait a reasonable time for our compensation:
congress appeared to acquiesce in this expectation, and did in fact begin
to make arrangements for effecting it. An act was passed
appropriating the whole reservation for satisfying claims; commissioners
were authorised to receive proposals of compromise from the claimants such
proposals have long since been made, and thereupon, the commissioners in
February, 1803, made a report to congress, recommending compensation,
though the amount proposed was very inadequate to the losses of your
memorialists; but even this was not carried into effect. With deep
regret your memorialists add, that year after year has since passed away,
during which our petitions for an adjustment of our claims have been
rejected in a manner too afflicting to be repeated. We are persuaded
this would not have been the case had our rights and sufferings been
thoroughly known to congress.
Such are the considerations which have induced your
memorialists to make the present appeal.
With sentiments of the most profound respect, and
relying with perfect confidence on the wisdom" |
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"and rectitude of our government, we again
humbly solicit that measures may be speedily adopted for an examination
and adjustment of our claims, on just and equitable principles. Benjamin
Hichborn,
Samuel Brown,
Benjamin Joy,
Thos. L. Winthrop,
Eben. Oliver,
John Peck,
George Blake,
Directors of the Mississippi Land Company. |
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