Preston v. Browder/Opinion of the Court

by Thomas Todd

The question now to be decided by the court is, whether the charge and instructions required by the plaintiff's counsel ought to have been given, and whether the one given was correct.

In the construction of the statutory or local laws of a state, it is frequently necessary to recur to the history and situation of the country, in order to ascertain the reason, as well as the meaning, of many of the provisions in them, to enable a court to apply, with propriety, the different rules for construing statutes. It will be found, by a recurrence to the history of North Carolina, at the time of passing this act, that she had, but a short time before, shaken off her colonial government, and assumed a sovereign independent one of her own choice; that, during the colonial system, by instructions and proclamations of the governor, the citizens were restrained and prohibited from extending their settlements to the westward, so as to encroach on lands set apart for the Indian tribes; that these encroachments had produced hostilities; and that, on the 20th of July, 1777, a treaty of peace had been concluded at fort Henry, on Holston river, near the Long Island, between commissioners from the state of North Carolina and the chiefs of that part of the Cherokee nation called the Overhill Indians; and that a boundary between the state and the said Indians was established. When the legislature of North Carolina were passing the act of November, 1777, establishing offices for receiving entries of claims for lands in the several counties within the state, it is improbable that the foregoing circumstances were not contemplated by them; and hence must have arisen the restriction in the act, as to lands 'which have accrued, or shall accrue, to this state, by treaty or conquest.' If this be not the ground or reason of the provision, it will be difficult to find one on which it can operate. It may be asked, where was the land which was to accrue by treaty or conquest, if not within the chartered limits of that state? If it was in a foreign country, or from a sister state, the restriction was unnecessary, because, in either case, it was not within the limits of any county within that state, and, of course, not subject to be entered for. The restriction must apply, then, to lands within the chartered limits of the state, which it contemplated would be acquired, by treaty or conquest, from the Indian tribes, for none other can be imagined. It is not to be presumed, that the legislature intended, so shortly after making the treaty, to violate it, by permitting entries to be made west of the line fixed by the treaty. From the preamble of the act, as well as other parts of it, it is clearly discernible that the legislature intended 'to parcel out their vacant lands to industrious people, for the settlement thereof, and increasing the strength and number of the people of the country, and affording a comfortable and easy subsistence for families.' Would these objects be attained by permitting settlements encroaching on the lands lately set apart, by treaty, for the use of the Indian tribes? by provoking hostilities with these tribes, and diminishing the strength of the country by a cruel, unnecessary, and unprofitable warfare with them? Surely not. However broad and extensive the words of the act may be, authorizing the entry takers of any county to receive claims for any lands lying in such county, under certain restrictions, yet, from the whole context of the act, the legislative intention, to prohibit and restrict entries from being made on lands reserved for Indian tribes, may be discerned. And this construction is fortified and supported by the act of April, 1778, passed to amend and explain the act of November, 1777; the 5th section of which expressly forbids the entering or surveying any lands within the Indian hunting grounds, recognises the western boundary as fixed by the above-mentioned treaty, and declares void all entries and surveys which have been, or shall thereafter be made within the Indian boundary.

It is objected, that the act of April, 1778, so far as it relates to entries made before its passage, is unconstitutional and void.

If the reasoning in the previous part of this opinion be correct, that objection is not well founded. That reasoning is founded upon the act of 1777, and the history and situation of the country at that time. The act of 1778 is referred to, as a legislative declaration, explaining and amending the act of 1777. It is argued that there is no recital in the act of 1778, declaring, that the act of 1777 had been misconstrued or mistaken by the citizens of the state; or, that entries had been made on lands, contrary to the meaning and intention of that act; and, that the 5th section is an exercise of legislative will, declaring null and void rights which had been acquired under a previous law. Although the legislature may not have made the recital and declaration in the precise terms mentioned, nor used the most appropriate expressions to communicate their meaning, yet it will be seen, by a careful perusal of the act, that they profess to explain, as well as to amend, the act of 1777. Upon a full review of all the acts of the legislature of North Carolina, respecting the manner of appropriating their vacant lands, and construing them in pari materia, there is a uniform intention manifested to prohibit and restrict entries from being made on lands included within the Indian boundaries. Therefore, this court unanimously affirms the decision of the circuit court with costs.

Judgment affirmed.

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