The enquirer. [volume] (Richmond, Va.) 1804-1815, 1810-04-06

the individual. and which. perhaps, amounts
to nothing more, than power 10 obIige him
to sell and convey. when the public neces-
sites requireit. t
The other point, on which, dissent from
the opinion of the court, is relative to the
Judgment which ought to be given on the first
count. Upon that count, we are called upon
substantially to decide. that the state of
Georgia. az the time Of passing the act of
cession, were legally seized, in fee, of the
soil, Chen ceded,) subjec, only to the extin-
guishmsnt of part of the Indian title" That
is. that the state of Georgia was seized of
an estate in fee simple, in the lands in ques,
tion. subject to another estate, we Know not
what. nor whether it may rot swallow up
the whole estate, decided to exist in Geor-
gia. 1t would seem that the mere vague
ness and uncertainty of this covenant, would
be sufficient objection to deciding in favor
OF 1t, but to me it appears, that the facts in
the case are sufficient to support the opini-
on, that the state of Georgia had not = fee
sinhlc in the land in question.
This is Question Of much dclicacy, and
more fitted for a diplomatic, or Legislative,
than judicial inquiry. But am called
upon to make a decision, and must make
1t upon technical principles.
he question is, whether it can be COR
rsctly predicated of the interest or estate,
which tie state of Georgia had in thcscN ands,
:" that the state was seized thereof In fee
simple"
To me it appears. that the interest of
Georgia, in that land amounted to nothing
more than mere possibility, and that her
conveyance thereof could operate legally
only, as a covenant to convey or to stand
seized to use.
! The correctness of this opinion will de-
pend upon a just view of the state of the In
dian nations. This will be found to be very
various. Some have totally cxtinguished
their national fire, and submitted themselves
to the laws Of the States: others have, by
treaty, acknowledged that they hold their
national existence at the will of the state
within which they reside. others retain
limited sovereignty and the absolute propri-
etorship OF their soil. The latter is the case
OF the tribes to the westsof Georgia. We
iegislate upon the conduct of strangers or
citizens within their limits, but innunerable
treaties formed with them acknowledge
them to be an independent people, and the
uniform practice of acknowledging their
right OF soil, by purchasing FROM them and
restraining all persons from encroaching up
on their territory, makes it unnecessary. to
INSIST upon their right of soil. Can, then,
one nation be said to be seized of fee SIM
pie in lands. the right of soil of which is in
another Eation 1t is awkward to apply the
technical idea of a fee simple to the inter.
ests OF a nation /; but must consider an alb
solute right OF soil as an entire estate to them
and their heirs. A fee-simple estate may
be held IN reversion, but our Law will not
admit ths idea of its being limited after a
fee-simple. In fact, if the Indian nations be
the absolute proprietors of their soil, no O.
Their nation can be said to have the same in
IN III M hat 81
interest 1.-THE states in the soil of the Intli-
ans within their boundaries? Unaffected by
particular treaties. it is nothing more than
what was assumed at the first settlement of
this country, to wit, a right of conquest or
OF purchase, exclusively Of all competitors
within certain defined limits. All the re-
strictions upon the right of soil in the Indi.
ans, amount only to an exclusion of all COM
pettors from their markets, and the limitati-
on upon their sovereignty amounts to the
right OF governing every person within their
limits except themselves. If the interest ia
Georgia was nothing more than pre- emp
tive right, how could that be called fee
simple, which was nothing more than pow
err to acquire fee simple by purchase,
when the proprietors should be pleased to
sell And if this ever was any thing more
than mere possibility, it certainly was re.
duced to that state when the state of Gcor-
gia coded to the U. S. by the constitution,
oosh the power OF pre-cHlption aud of con-
quest, retaining for itself, only resulting
right dependent on purchase or conquest
to be made by the U. S.
have been very unwilling to proceed to
the decision OF this cause at ALL It appears
to me 70 bear strong evidence, upon the face
OF it, OF being mere feigned case. 1t is our
duty 20 decide on the rights, but not on the
'pecula;ions of parties. My confidence, how
ever, in the respectable gentlemen who have
been engaged for the parties, has induced
me to abandon my scrusles in the belief that
they woud never Consent to impose mere
teisned case upon this court.