Were the members of the Legislature of Georgia, in 1796, invested with the constitutional power of rescinding the acts of their predecessors in relation to such sale, and did they rescind them?
Were the claims or pretended claims of the present claimants in any manner recognized by the act of cession of the territory in question from Georgia to the United States? And,
Do justice and policy, or either justice or policy, require that the whole or any part of the five millions of acres, reserved by the act of cession from Georgia to the United States, for the purpose of satisfying claims of a certain description against Georgia, in reference to the said territory, should be appropriated for the purpose of satisfying the claims of the present claimants?
However extensive the outline which I have sketched of the subject, the survey will be a rapid one.
It is necessary that I should make one or two preliminary observations. I have uniformly been opposed to the doctrine which has been so powerfully advocated, that Congress is competent to make a legislative decision upon the validity or invalidity of the conflicting acts of Georgia. We possess no such powers. But as individuals we may express our opinions. Nor am I disposed to do any thing which shall have a tendency to impugn the title of the United States to this territory. Without deciding the question of title, my principal object is to show that the claimants are in possession of so strong a color of title, that it will be good policy to authorize a negotiation with them for the abandonment of their claim, especially as we have a prospect of obtaining that abandonment on their part, without going beyond the reservation in the act of cession, and of course without the actual expense of a single dollar to the United States.
Did the State of Georgia, in the year 1795, possess a title to the territory in question?
To answer this inquiry, it is only necessary to make one or two quotations from the articles of agreement and cession, entered into on the 24th of April, 1802, between the Commissioners of the United States and those of Georgia. In the first article, “the State of Georgia cedes to the United States all the right, title, and claim, which the said State has to the jurisdiction and soil of the lands situated within the boundaries of the United States south of the State of Tennessee,” &c. By the second article, “The United States accept the cession above mentioned, and on the condition therein expressed; and they cede to the State of Georgia whatever claim, right, or title, they may have to the jurisdiction or soil of any lands lying within the United States, and out of the proper boundaries of any other State, and situated south of the southern boundaries of the States of Tennessee, North Carolina, and east of the boundary line herein above described, at the eastern boundary of the territory ceded by Georgia to the United States.” Whatever claim or title the United States might previously have had to the territory, they thought proper, in 1802, to combine with it, and to fortify it, by that of Georgia; and surely we shall not do any act, or adopt any principle, tending to impair the title under which we now exercise jurisdiction over the territory.
Were the Legislature of Georgia, in 1795, invested with the constitutional power of making a sale of the territory, and did they make such sale to those from whom the present claimants derive their title or pretended title? And if such sale was made, what title or color of title did it convey?
In this age of political revolution and reformation, for I consider it an age of reformation as well as revolution, there are still certain principles and maxims, not merely venerable for their antiquity, but consecrated by their conformity to the common sense and reason of mankind, which are considered as universal in their application, and irresistible in their influence. Among these may be numbered the principles which attach to the government of every regularly-organized community; the power of pledging the public faith, and that of alienating the right of soil of the vacant territory of the nation. In every free government, there must exist the power of legislation, or of making laws; a distinct power, charged with the execution of the laws, and a judicial power. The union of these different powers in the same man or body of men, is the very essence of despotism. Thus in France, prior to the Revolution, it was a fundamental maxim of State that the King was the Legislator of the French Monarchy; and the power exercised in some instances by certain parliaments, of refusing to register the edicts of the monarch, however in practice it might operate as an obstruction to legislation, was in theory only a matter of form, or at most but a temporary check upon the executive power. In oligarchies the legislative power is vested in the rich and noble; and in aristocracies, in a few individuals who are presumed to be the wisest and the best in the community. In governments of the democratic form, this power resides in the great body of the people, and is exercised by themselves or their representatives. The base of the temple of American liberty is democracy, or the sovereignty of the people; representation and confederation are the principal pillars which support the great superstructure. As the State governments are unquestionably representative democracies, the General Government is a representative federal republic. In every government of the representative form, the representatives of the people are vested with power to pledge the public faith, and to alienate the vacant territory of the nation. Were the members of the Legislature of Georgia, in 1795, invested with this authority? Certainly it was within the sphere of those constitutional rights and powers, which had never been surrendered to the General Government. We have since recognized that authority by receiving a solemn deed of cession of the territory from a subsequent Legislature of Georgia, transferring to us not only the soil, but the right of jurisdiction. Was this authority exercised in 1795? In the act of the Legislature of that State of the 7th of January in that year, granting this territory to those from whom the present claimants derive their claims, certain lands are described, and it is enacted that those lands shall be sold to such and such persons, as tenants in common, and not as joint tenants. The land shall be sold, or, in other words, the right of soil shall be alienated. A proper distinction is taken between the dominium utile and the dominium directum of the civilians. No transfer was made of the right of jurisdiction, although such imaginary transfer forms a prominent article in the reasons assigned by the Legislature of 1796 for passing the rescinding act. From this view of the subject, whatever may be the present state of the question of legal title, who can doubt that the present claimants, honest purchasers from the original grantees, upon the faith of an independent State, and innocent of fraud, if fraud existed, possess such a color of title, such an equitable claim, as to render it prudent and politic to enter into a compromise with them upon reasonable terms?
Were the members of the Legislature of Georgia, in 1796, invested with the constitutional power of rescinding the acts of their predecessors in relation to such sale, and did they rescind them?