Burton's v. Williams/Opinion of the Court

by William Johnson

This case originates in a collision of interest and opinion, between the states of North Carolina and Tennessee, and the United States, relative to their respective rights, in certain instances, to perfect titles to the soil of Tennessee. North Carolina, in the year 1812, issued the grant set up on the trial, in behalf of the plaintiff. Both Tennessee and the United States contend, that North Carolina has relinquished the right to issue such a grant. And North Carolina replies, that her cession was conditional, and that the condition has been violated, or that the casus foederis has never arisen.

The whole difficulty arises from the obscure wording, or doubtful construction, of the act of congress of April 18th, 1806. But after comparing all the acts of the respective states upon the subject, reviewing the events which led to the passage of that act of congress, and determining the motives which influenced the parties in making the compact, which the act of congress contains, we are of opinion that an exposition may be given perfectly consistent with good faith, and leaving to North Carolina no reasonable ground for complaint. We here disavow all inclination, on the part of this court, to interfere, unnecessarily, in state altercations; we enter into the consideration of such collisions only so far as to secure individual right from being crushed in the shock. But in all such discussions the questions necessarily arise, what has a state granted? and what was the extent of its power to grant? Those questions cannot be avoided.

It will be recollected that the state of Tennessee originally constituted a part of the state of North Carolina; that in the year 1789, the latter state made a cession, both of soil and sovereignty, to the United States, of all the soil and country now comprised within the limits of Tennessee; and that in the year 1796, the state of Tennessee was admitted into the union. Previous to the act of cession, North Carolina had made title to a considerable proportion of the soil of Tennessee, under circumstances which attached the title to a designated portion of soil, so that nothing more was necessary to vest a complete legal title, but what, in contemplation of her laws, was a mere formality, a survey and grant. In other instances she had issued warrants for a specified quantity of land, but under which the holder had not yet definitely fixed his landmarks, so that he did not hold land, but only the evidence of a right to acquire land. These, and several other descriptions of land-titles, as they are called, the act of cession makes provision for securing to the individual, to the full extent to which he was entitled under the laws of North Carolina. The words of the deed of cession are these: 'Where entries have been made agreeably to law, and titles under them not perfected by grant or otherwise, then, and in that case, the governor for the time being shall, and he is hereby required to perfect, from time to time, such titles, in such manner as if this act had never been passed. And that all entries made by, or grants made to all and and every person or persons whatsoever, agreeably to law, and in the limits hereby intended to be ceded to the United States, shall have the same force and effect as if such cession had not been made; and that all and every right of occupancy and pre-emption, any every other right reserved by any act or acts, to persons settled and occupying lands within the limits of the lands hereby intended to be ceded as aforesaid shall continue to be in full force in the same manner as if the cession had not been made, and as conditions upon which the said lands are ceded to the United States;' and, 'further it shall be understood,' &c. making a provision for the case of persons who shall lose the benefit of a location because of its having been laid on a place previously located, and declaring that 'they should be at liberty to remove the location of such entry or entries, to any lands on which no entry has been specifically located, or on any vacant lands included within the limits of the lands hereby intended to be ceded.' Thus under the act of cession, the United States held the right of soil in the vacant lands of Tennessee, qualified by the right which the state of North Carolina retained of perfecting the inchoate titles created under her own laws.

When the act was passed, admitting the state of Tennessee into the union, congress omitted to insert any express provision respecting unappropriated land; and on this circumstance the state of Tennessee set up a claim to all such land within her designated limits. But still she was embarrassed in the use of her supposed acquisition, by the rights which North Carolina retained of perfecting her own land titles, and she could not obtain from a state a cession of that right without the consent of congress. This afforded the United States ultimately the means of resuming, in part, the soil that they were supposed inadvertently to have ceded to Tennessee, and was the ground work of the compact which is exibited in the act of 1806. The state of North Carolina in the mean time has passed an act in 1803, entitled 'an act to authorise the state of Tennessee to perfect titles to land reserved to this state by the cession act,' but expressly subject to the assent of congress; and the two great objects of the act of congress of 1806, as avowed in the title, are 'to authorize the state of Tennessee to issue grants and perfect titles to certain lands therein described, and to settle the claims to the vacant and unappropriated lands within the same;' or, in other words, to enable the state of Tennessee to acquire the absolute unqualified right, (so far as it comported with private right) of appropriating the soil within its limits, and, eodem flatu, to enter into a partition of that soil with the U. States, connected with the rights thus acquired from North Carolina. And such in effect is the operation of the compact of 1806. The two contacting parties commence with drawing a line across the state, and then stipulate that the soil to the westward shall be vested absolutely in the United States, and that to the eastward in Tennessee. Now, it is absurd to suppose that when the United States proposed to acquire to themselves the absolute dominion over the soil to the westward, that they would have withheld that assent, without which Tennessee could not acquire it, and, of course, could not convey it to the United States. The words in which the assent of congress is expressed, are found in the close of the 2d section; they are these, 'to which said act the assent of congress is hereby given, so far as is necessary to carry into effect the objects of this compact.'-But these latter words, although at first view they may appear to be restrictive, really in their operation, as here applied, must give the utmost latitude to that assent; because, nothing short of that latitude would give effect to the provisions of the compact. And upon considering the act of North Carolina, to which they refer, it will obviously appear, that those restrictive words were introduced with a view to another object. There are several provisions of mere detail contained in that act; these could take effect without the assent of congress, and to those provisions these restrictive words must have had reference.

But, it is contended, that in the very compact between the United States and Tennessee, the conditions of the act of cession have been violated, and the state of North Carolina was authorized to resume her rights. Without admitting either the premises or conclusion of this argument, we may be permitted to observe, that it is at least a perilous dectrine. The members of the American family possess ample means of defence under the constitution, we hope ages to come will verify. But happily for our domestic harmony, the power of aggressive operation against each other is taken away; and the difficulty and danger of applying to the contracts of independent states, the principles of the common law relative to conditions would, if necessary, incline this court to consider words of condition, in such cases, as words of contract. In this instance, the state of North Carolina has asserted the common law right of entering for condition broken, and the unfortuna consequences may well be held up as a warning to others.

But in this case the words used are not words of condition. On the contrary the words of condition used with relation to the provision for securing vested freehold rights are dropped and those applied to the other class of rights are appropriate only to stipulation or contract, 'it shall be understood,' &c. are the words as expressed in the quotation from that act. All the operation, then, which can be given to the provisions of the session act, on the subject of these floating rights, is that of the stipulations of a treaty; and all the obligation resulting from those provisions, as well on behalf of the United States as of Tennessee, was, that it should be honourably and in good faith executed. And this has been done. No more control has been exercised over those floating claims than North Carolina might have exercised, and no obligation which North Carolina acknowledged with regard to those rights has been violated.

The injuries complained of are, that these floating rights have been restricted in their original range, so as not to be permitted now to be located to the westward of the line of demarkation, and that they have also been restricted to the eastward by the stipulations of Tennessee, to make certain appropriations for schools. But this reasoning is founded upon two assumptions that cannot possibly be admitted, to wit: That North Carolina herself could not, if she had thought proper, have made these appropriations before the act of cession, and that after the act of cession, the United States could not have set apart any portion of the unlocated land for specified purposes; or, in fact, have issued any grants or warrants for unappropriated land, until these floating claims had finally found a place of rest, after landing and embarking again a hundred times. It would have been nugatory under such circumstances to have made a cession of territory. These claims were not forgotten; Tennessee stipulates to make provision for them on her side of the line, and the United States to make provision on the other side, if Tennessee cannot satisfy them; so that the whole country is in fact open to the holders of these rights; but they are only in the first instance directed to a particular tract of country to make their selections.

With regard to the objection, that the appropriation of these lands was made to a single state, when they were expressly given for the use of the United States, including North Carolina, there is certainly nothing in it; for the erection of a state may have appeared to congress the most beneficial general purpose to which those lands could be appropriated; nor can the prohibition to locate warrants on the Cherokee lands be objected to, when it is considered that it was actually illegal under the laws of North Carolina: and the stipulation is expressly made in subservience to the laws of that state.

Upon the whole, we are decidedly of opinion, that the state of North Carolina has parted with the power to issue this grant, and could not resume it. But although we must decide against the action of the plaintiff in this case, because it rests upon that grant, it must not be interred that we think unfavourably of his right to the land. On the contrary, we have no doubt, as far as appears in this record, of the obligation on the United States to make provision for issuing a grant in his favour; and in the mean time the courts of the United States are not without resources in their equity jurisdiction to afford him relief.

Judgment affirmed.

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