ERROR to the circuit court of East Tennessee. This was an action of ejectment, brought by the plaintiff in error, to recover the possession of 5000 acres of land, lying in Maury county, in the state of Tennessee, and granted to the lessor of the plaintiff by the state of North Carolina, on the 14th of July, 1812. The grant was founded on an entry made on the 27th of October, 1783, in the land office of North Carolina, commonly called John Armstrong's office; on a warrant of survey issued from the same office on the 10th of July, 1784; and on a survey made on the 26th of February, 1812, under an act of the legislature of North Carolina, passed in 1811. The lands lay in that part of Tennessee in which the disposition of the vacant and unappropriated lands is reserved to the United States by the act of congress of the 18th of April, 1806, ch. 31. This title was offered in evidence by the plaintiff at the trial, and was objected to by the defendant, who claimed under a grant from Tennessee. The evidence was rejected by the court below; on which the plaintiff excepted, and the cause was brought by writ of error to this court.
The opinion of the court was delivered by: Mr. Justice Johnson delivered the opinion of the court.
Mr. Harper, for the plaintiff, argued, that the state of North Carolina, under the conditions of her act of 1789, ch. 3. for ceding the western lands to the United states, had a right to perfect grants on all such entries as this, at any time after the cession, and not merely within the time which was limited by the then existing laws of North Carolina; the conditions of the cession being recited and confirmed in the act of congress of the 2d of April, 1790, ch. 33. accepting that cession. That the act of North Carolina of 1803, ch. 3. for ceding this right to the state of Tennessee, with the assent of congress, was wholly inoperative and void, for want of that assent; congress not having assented simply and unconditionally, as was intended by the legislature of North Carolina, but having coupled its assent with conditions destructive of the rights of that state and her citizens, under the act of cession. That, consequently, the act of congress of the 18th of April, 1806, ch. 31. being founded on this act of North Carolina, and on the act of Tennessee of 1804, ch. 14. which rests on the same basis, is without authority, and void. That even if the act of North Carolina of 1803, ch. 3. were operative, it merely gives the state of Tennessee concurrent power with North Carolina for perfecting these titles and does not devest the power of the latter state. And that if the power granted to Tennessee by this act was absolute and exclusive, while it existed, it reverted to North Carolina, when Tennessee, by assenting to the conditions imposed by congress in the act of April 18th, 1806, ch. 31. disabled herself from exercising this power or procuration, according to the terms and intentions of the grant from North Carolina.*fn1 a
Mr. Campbell, contra, contended, that the state of North Carolina, by her act of 1803, ch. 3. transferred to Tennessee all the power to issue grants reserved by her in the act of cession of 1789, on the conditions that the state of Tennessee should agree to said act as a compact between the two states, and that the assent of congress should be obtained thereto. Tennessee did agree to the act, by her own act of 1804, ch. 14. and the assent of congress was given thereto by the act of the 18th of April, 1806, ch. 31. Consequently, the state of North Carolina had no power to issue the grant in question. That the provisions in the act of congress of the 18th of April, 1806, ch. 31. relate only to the final deposition of the vacant lands in Tennessee, remaining after all the claims from North Carolina are satisfied, according to the conditions of the cession act, and do not impair the right acquired under titles derived from the latter state. That the transfer of power to perfect grants from North Carolina to Tennessee vested it in the latter, unconditionally and exclusively; and the power having once vested, cannot revert, or be devested. The authorities cited, as to reversion of powers, upon a breach of the conditions on which they were granted, are wholly inapplicable to transactions between independent communities and states. But even supposing the same rules in this respect were to be applied to their acts, as to those of private individuals, he contended, that Tennessee had performed the condition as near to the intent as might be, and that whatever is an equitable, ought to be considered a legal execution of a power.*fn2 b
That the public documents, necessary to enable Earl of Darlington v. Pultney, Cowp. 260. the power in question, were delivered to that state according to the compact of 1803; and that it was executed by her from 1806 to 1811, with the apparent acquiescense of North Carolina, which state ought not, therefore, now to be permitted to object that the assent of congress thereto had not been sufficiently given. That this assent was deemed necessary to comply with that provision in the constitution, art. 1. s. 10. which declares, that 'no state shall, without the consent of congress, enter into an agreement or compact with another state,' and because the United States had an interest in the subject matter of the compact. This assent was not intended for the benefit, or to secure the interests, of North Carolina; and the approbation of congress having been sufficiently manifested, that state has no right to object to the mode in which the assent was given. That by her act of cession, the state of North Carolina reserved the right to issue grants, only in conformity to her then existing laws, but not to pass new statutes upon the subject, like that of 1811. And that the state of Tennessee, by an act passed in 1812, declared this grant, and all others issued under similar circumstances, void; and provided, that they should not be read as evidence of title in any court of the state; thus asserting her exclusive right under the compact of 1803 to issue grants for lands within the state.
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; ...