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PORTERFIELD V. CLARK, 43 U. S. 76 (1844)
U.S. Supreme Court
Porterfield v. Clark, 43 U.S. 76 (1844)
Porterfield v. Clark
43 U.S. 76
An Act of the Legislature of Virginia, passed in May, 1779, "establishing a land office and ascertaining the terms and manner of granting waste and unappropriated lands," contained, amongst other exceptions, the following, viz.:
no entry or location of land shall be admitted within the country and limits of the Cherokee Indians.
The tract of country lying on the west of the Tennessee River was not then the country of the Cherokee Indians, and, of course, not within the exception.
A title may be tried in Virginia, Kentucky, and Tennessee as effectually upon a caveat as in any other mode, and the parties, as also those claiming under them, are estopped by the decision.
The boundaries of the Cherokees, as fixed by treaties, historically examined, and also the nature, limits, and effect of the grant to Henderson and Company. Whatever lands in Virginia were not within the exceptions of the act of 1779 were subject to appropriation by Treasury warrants.
As the rule is settled that the decisions of state courts construing state laws are to be adopted by this Court, and as the courts of Kentucky have decided that an entry was required to give title on a military warrant, in the military district, this Court decides that the legislative grant of Virginia to her officers and soldiers would not of itself prevent the statute of limitations of Kentucky from attaching.
The Kentucky act of 1809 applied to the Chickasaw country on the west of the Tennessee River as far as treaties would permit, and upon the extinguishment of the Indian title, this act, together with all the other laws, was extended over the country.
On 19 December, 1778, the General Assembly of Virginia passed a joint resolution declaring that a certain tract of country, to be bounded by the Green River and a southeast course from the head thereof to the Cumberland Mountains, with the said mountains to the Carolina line, with the Carolina line to the Cherokee or Tennessee River, with the said river to the Ohio, and with the Ohio to Green River, ought to be reserved for supplying the officers and soldiers of the Virginia line with the respective proportions of land, which have been or may be assigned to them by the general assembly, saving and reserving the land granted to Richard Henderson and Company, and their legal rights to such persons as have heretofore actually located lands and settled thereon, within the bounds aforesaid.
In May, 1779, every purchase of lands theretofore made by or on behalf of the Crown of Great Britain from any nation of Indians within the limits of Virginia was declared to enure to the benefit of that commonwealth, and all sales and deeds made by any Indian or nation of Indians to or for the separate use of any person or persons were pronounced void.
In May, 1779, also, an act was passed by the general assembly "for establishing a land office, and ascertaining the terms and manner of granting waste and unappropriated lands." This act contained, amongst other things, the following restrictions:
"No entry or location of land shall be admitted within the country and limits of the Cherokee Indians, or on the northwest side of the Ohio River, or on the lands reserved by act of assembly for any particular nation or tribe of Indians, or on the lands granted by law to Richard Henderson and Company, or in that tract of country reserved by resolution of the general assembly for the benefit of the troops serving in the present war, and bounded by the Green River and southeast course from the head thereof to the Cumberland Mountains, with the said mountains to the Carolina line, with the Carolina line to the Cherokee or Tennessee River, with the said river to the Ohio River, and with the Ohio to the said Green River, until the further order of the general assembly."
In October, 1779, an act was passed "for more effectually securing to the officers and soldiers of the Virginia line the lands reserved to them," &c.
The first section imposed a heavy penalty on settlers who should not evacuate the reserved lands.
The second ascertained the proportions or quantity of land to be granted, at the end of the war, to the officers of the Virginia line on continental or state establishment, or to the officers of the navy, and it was also provided that where any officer, soldier, or sailor, shall have fallen or died in the service, his heirs or legal representatives shall be entitled to, and receive, the same quantity of land as would have been due to such officer, soldier, or sailor, respectively, had he been living.
On 18 May, 1780, Colonel George Rogers Clark (under whom the defendants claim), upon sundry Treasury warrants, made with the surveyor several entries of land, in all amounting to 74,962 acres, lying in the then State of Virginia, below the Tennessee River, and afterwards, said Clark, in like manner, on 26 October, 1780, amended his said entries,
"to begin on the Ohio at the mouth of the Tennessee River, running down the Ohio, bounded by the drowned lands of the said river and waters of the Mississippi, for the quantity of 74,962 acres, in one or more surveys."
In October, 1780, an act passed "for making good the future pay of the army."
It allowed a major general 15,000 acres of land, and a brigadier general 10,000.
It entitled the legal representative of any officer who may have died in service before the bounty of lands granted by that or any former law, to demand and receive the same in like manner as the officer himself might have done. And as a testimony of the high sense the General Assembly of Virginia entertained of the important services rendered the United States by Major General Baron Steuben, it was further enacted that 15,000 acres of land be granted to the said Major General Baron Steuben, in like manner as is hereinbefore granted to other major generals.
In November, 1781, an act passed "to adjust and regulate the pay and accounts of the officers and soldiers of the Virginia line" &c.
The eighth section declared
"That whereas a considerable part of the tract of country allotted for the officers and soldiers by an act of assembly, entitled 'An act for establishing a land office,' &c., hath, upon the extension of the boundary line between this state and North Carolina, fallen into that state, and the intentions of the said act are so far frustrated, be it therefore enacted that all that tract of land included within the Rivers Mississippi, Ohio, and Tennessee, and the Carolina boundary line, shall be and the same is hereby substituted in lieu of the lands so fallen into the said State of North Carolina, to be in the same manner subject to be claimed by the said officers and soldiers."
The ninth section required the governor, as soon as the circumstances of affairs would admit, to appoint surveyors for the purpose of surveying and apportioning the lands theretofore reserved to the officers and soldiers agreeably to their ranks, in such manner and in such proportions as were allowed by act of assembly as a bounty for military services.
The officers were authorized to depute and appoint as many of their number as they might think proper, to superintend the laying off the lands, with power to choose the best of the same thus to be allotted, and point out the same to the surveyors who were required to make the surveys, and be subject to the orders of the superintendents throughout the survey.
After the survey, the portions of each rank were to be numbered, and the officers and soldiers were to proceed to draw lots according to their respective ranks, and to locate as soon as they thought proper.
The twelfth section provided
"That the bounties of land given
to the officers and soldiers of the Virginia line in continental service, and the regulations for the surveying and appropriating the same, shall be extended to the state officers."
In May, 1782, an act was passed, entitled "An act for providing more effectual funds for the redemption of certificates granted the officers and soldiers raised by this state."
The seventh section provided that
"Whereas it is necessary that the number of claims to any part of the lands appropriated for the benefit of the said officers and soldiers should be speedily ascertained: be it therefore enacted that all persons having claims as aforesaid, be required, and they are hereby directed, to transmit authenticated vouchers of the same to the war office, on or before the first of January next,"
and those without the state were required to do the same on or before the first of June.
The eighth section directed the register of the land office to grant, to the officers and soldiers, warrants for the lands allotted them, upon producing a certificate of their respective claims from the commissioner of war.
The ninth section enacted "That any officer or soldier who hath not been cashiered or superseded, and who hath served the term of three years successively, shall have an absolute and unconditional title to his respective apportionment of the land appropriated as aforesaid."
The tenth section contained this proviso,
"Provided always, and it is hereby enacted, that no surveyor shall be permitted to receive any location upon any warrant for lands within the country reserved for the officers and soldiers, until the apportionment and draft for the same, as directed by the act entitled 'An act to adjust and regulate the pay and accounts of the officers and soldiers of the Virginia line.'"
On 18 December, 1782, a warrant was issued to Robert Porterfield (the complainant), as the heir of Colonel Charles Porterfield, deceased, for 6,000 acres of land, and on 13 June, 1783, a warrant was issued to Thomas Quarles for 2,666 2/3 acres, which warrant was afterwards assigned to Porterfield, the complainant.
In October, 1783, an act was passed, entitled, "An act for surveying the lands given by law to the officers and soldiers of continental and state establishments," &c.
For the better locating and surveying the lands, given by law to
the officers and soldiers on state and continental establishments, it enacted that it should be lawful for the deputation of officers, consisting of Major General Peter Muhlenberg and others, who are enumerated, to appoint superintendents on behalf of the respective lines, or jointly, for the purpose of regulating the surveying of the lands appropriated by law as bounties for the said officers and soldiers. That the deputations should have power to appoint two principal surveyors; that the holders of land warrants for military bounties, given by law as aforesaid, should, on or before 15 March thereafter, deliver the same to the principal surveyors &c.
The second section declared that priority of location should be by lot under the direction and management of the principal surveyors and superintendents. That the warrants delivered to the principal surveyors before 10 March, should be surveyed first, and those subsequently delivered, in the order of priority.
The third section required the location and surveys to be made under the direction of the superintendents.
The fourth section directed where, and how, the lands were to be surveyed. Those lying on the Cumberland and Tennessee were to be surveyed first, and afterwards those on the northwest side of the Ohio River, until the deficiency of all military bounties, in lands, should be fully and amply made up. "Whatever lands may happen to be left," the act declares,
"within the tract of country reserved for the army, on this side the Ohio and Mississippi, shall be saved, subject to the order and particular disposition of the Legislature of this state."
And the governor was required to furnish the superintendents with such military aid as he might judge necessary to carry the act into effect. The aid was to be ordered from the Kentucky country, and was not to exceed a hundred men.
In the spring of 1784, the superintendents repaired to Kentucky. The found the country below the Tennessee in possession of the savages, who threatened resistance. The aid expected from Kentucky was not furnished. The attempt to enter and survey the lands was, consequently, abortive. But the superintendents proceeded to determine the priority of locations by lot; and entries were made on the books of the surveyors, to the extent of some two or three hundred thousand acres.
Porterfield's entries were of the number. They were made under the authority of the two warrants which have been already stated.
In June, 1784, two surveys were made for Clark by the Surveyor
of Lincoln County, under the authority of the warrants already stated as land office Treasury warrants. One of these surveys was for 36,962 acres, and the other for 37,000 acres.
In August, 1784, Porterfield made his entries.
Caveats were entered against the surveys of Clark, which prevented patents from being issued. These were entered in the district court of the then District of Kentucky, by the superintendents of the Virginia state line, and were not disposed of until after the separation of Kentucky from Virginia.
In October, 1784, the Legislature of Virginia interposed to prevent the military claimants from taking possession of the lands. The preamble to the act stated,
"That it had been represented to the present general assembly that the taking possession of, or surveying the lands in the western territories of this state, which have been granted by law as bounties to the officers and soldiers of the Virginia line will produce great disturbances,"
and the governor, with the advice of council, was authorized to suspend, for such time as he may think the tranquility of the government may require, the surveying or taking possession of those lands that lie on the northwest side of the River Ohio or below the mouth of the River Tennessee, and which have been reserved &c.
On 6 January, 1785, Governor Henry accordingly issued his proclamation to the effect authorized by this act.
In November, 1785, and January, 1786, three treaties were made with the Indians at Hopewell, by commissioners on the part of the United States, the first, in November, with the Cherokees, and the other two in the following January with the Choctaws and Chickasaws. That with the Choctaws bears date on the 3d, and that with the Chickasaws on 10 January, 1786. By the treaty with the Cherokees, the boundary was established as follows: beginning at the mouth of Duck River, on the Tennessee, thence running northeast to the ridge dividing the waters running into Cumberland from those running into the Tennessee; thence eastwardly along the said ridge to a northeast line to be run which shall strike the River Cumberland forty miles above Nashville; thence along the said line to the river; thence up the said river to the ford where the Kentucky road crosses the river; thence to Campbell's line, near Cumberland Gap, &c. The treaty with the Chickasaws established the following boundary: beginning on the ridge that divides the waters running into the Cumberland from those running into the Tennessee
at a point in a line to be run northeast which shall strike the Tennessee at the mouth of Duck River; thence running westerly along the said ridge till it shall strike the Ohio; thence down the southern bank thereof to the Mississippi; thence down the same to the Choctaw line of Natchez district; thence along the said line, or the line of the district, eastwardly, as far as the Chickasaws claimed, and lived, and hunted on, the twenty-ninth of November, one thousand seven hundred and eighty-two.
The fourth article of the treaty with the Chickasaws was as follows:
"If any citizen of the United States, or other person, not being an Indian, shall attempt to settle on any of the lands hereby allotted to the Chickasaws to live and hunt on, such person shall forfeit the protection of the United States of America; and the Chickasaws may punish him or not, as they please."
In 1793, the caveat which had been filed against Clark by the superintendents of the Virginia state line was dismissed in Kentucky pursuant to the opinion of the Court of Appeals of Virginia given in 1791.
In 1794, the General Assembly of Kentucky passed an act requiring the register of the land office to receive, and issue grants on, all certificates of survey which were in the register's office of Virginia at the time when the separation took place, and on which grants had not issued.
On 15 September, 1795, grants were issued by Kentucky to Clark for the 73,962 acres.
In 1809, the Legislature of Kentucky passed an act, the second section of which declares,
"That no action at law, bill in equity, or other process, shall be commenced or sued out by any person or persons claiming under, or by, and adverse interfering entry, survey, or patent, whereby to recover the title or possession of such land from him or her who shall hereafter settle on land to which he or she shall, at the time of such settlement made, have a connected title in law or equity, deducible of record from the commonwealth, and when such settler shall have acquired such title or claim after the time of settlement made, the limitation shall begin to run only from the time of acquiring such title or claim, but within seven years next after such settlement made &c."
In October, 1818, a treaty was made between the United States and the Chickasaws, by which the Chickasaws ceded to the United States all the land between the Tennessee, Ohio, and Mississippi
Rivers and a line therein described on the south, which session included the lands in controversy.
On 22 December, 1818, the Legislature of Kentucky passed an act prohibiting any entry or survey from being made "on any portion of the land lying within the late Chickasaw Indian boundary."
In July, 1819, William Clark, the assignee of George Rogers Clark, the patentee, took possession of the land and placed tenants upon it.
On 14 February, 1820, the Legislature of Kentucky passed an act provided for the appointment of a superintendent to survey the lands west of the Tennessee River.
On 26 December, 1820, the military surveyor was permitted to survey the entries that had been made prior to the year 1792, when Kentucky became an independent state. Porterfield's surveys were commenced and continued from time to time until 1824 and 1825. Five surveys were made at different times during this period, and five patents were issued in conformity with them, which bear date in the last-mentioned years. In May, 1824, Porterfield took possession, by his tenants, of several of the tracts patented to him, and leased them for five years.
In October, 1825, these tenants were turned out of possession by writs of forcible entry and detainer.
Some conveyances and legal proceedings occurred during the period of which we have spoken, but, as they have no bearing upon the questions before the Court in the present case, they have not been mentioned in the statement.
In July, 1836, Porterfield filed his bill in the Circuit Court of the United States for the District of Kentucky, sitting as a court of equity, which, together with two amended bills and a bill of revivor, after having brought into court various parties who were supposed to have an interest in the matter, presented the following claim, charges, and prayer.
The bill, after setting forth the title of the complainant, as founded upon the patents of 1824, 1825, and 1826, and alleging that the possession of the country by the Indians was the cause of the delay between the entries and surveys, charged that the defendant, Clark, had no right to make an entry or location on any lands west of the Tennessee River or on the lands included between the Rivers Ohio, Tennessee and Mississippi, and the North Carolina line on land office Treasury warrant certificates; that by law he, Clark, was expressly
prohibited from making the said entry or location on land within the country and limits of the Cherokee Indians, or the lands reserved by the Virginia assembly for any particular nation or tribe of Indians, or in that tract of country reserved by resolution of the General Assembly of the State of Virginia for the benefit of the troops serving in the then existing war between Great Britain and the United States of America. The bill avers that the entry of George Rogers Clark was made on lands reserved by resolution of the Assembly of Virginia for the troops then in the service of the United States; that it was made on lands reserved by law for the Indian tribes, and upon lands within the country and limits of the Cherokee Indians. The bill further charges that the said warrants were by law prohibited from being located on any lands that were not waste and unappropriated; that at the time of the entries, the Indian title to said lands west of the Tennessee River and included within the Rivers Ohio, Mississippi, Tennessee, and the North Carolina boundary line, was not extinguished. The bill further charges that the entry of Clark is not precise and special, but vague, uncertain, and void because it called to begin on the Ohio at the mouth of the Tennessee River, running down the Ohio, bounded by the drowned lands of said river and waters of the Mississippi for the quantity of 74,962 acres in one or more surveys, and moreover that the person who in fact made such survey was not an authorized and legally appointed surveyor. It then charges that the titles of Clark and all who claim under him are void, and prays for a decree compelling them to release their claims to the complainant, and account to him for the rents and profits of the land.
A supplemental bill and answer were afterwards filed, but the matters therein stated are not before the Court in the consideration of this case, the charges made in the bill being denied in the answer and no proof being offered to sustain them.
The defendants all answered, but as they all rely on the same matters of defense, it is not material to notice any of the answers but that of William Clark. He contests throughout the right of Porterfield to relief; denies that any part of the land in contest was possessed by Porterfield at the time of filing his bill; on the contrary, he alleges that by his tenants he had for more than seven years next before the filing of the bill been in full and exclusive possession of all the land in contest, claiming and holding the same under the title derived from George Rogers Clark, and he therefore pleads and
relies upon his possession and the statute of Kentucky, limiting the time of bringing suits in such cases to seven years, in bar of the relief sought by Porterfield. He insists that at the date of Clark's entries there was no law prohibiting the location of Treasury warrants below the Tennessee River, and that the entries were made on land subject to appropriation and in conformity with law; that they possess the certainty and precision of valid entries, and were afterwards legally surveyed in conformity with law, upon which surveys patents finally issued according to law, and that his title is not only elder in date, but superior in law and equity to that of Porterfield.
Among the other matters given in evidence in this case were copies of some original papers found in the State Paper Office in London relating to the boundary lines adopted at various times between the white people and that Indians, the substance of which is as follows:
1. Deed (or treaty) with the Cherokees dated 13 June, 1767, which recited that a previous treaty had been made on 20 October, 1765, directing the line to be run from where the South Carolina line terminated, a north course into the mountains, whence a straight line should run to the lead mines of Colonel Chiswell on the Great Kenhawa River, and that the commissioners had found themselves unable to run the line further than the top of a mountain called Tryon Mountain, on the headwaters of Pacolet Creek and White Oak Creek, therefore the present treaty established the following: running from the top of Tryon Mountain aforesaid, beginning at the marked trees thereon, by a direct line to Chiswell's mines in Virginia.
2. Treaty between John Stuart, on behalf of his Majesty the King of England and the upper and lower Cherokee nations, concluded at Hard Labor, on 13 October, 1768, establishing the following boundary: from a place called Towahihie, on the northern bank of Savannah River, a north fifty degrees east course in a straight line to a place called Demesses Corner, or Yellow Water; from Demesses Corner or Yellow Water, a north fifty degrees east course, in a straight line to the southern bank of Reedy River at a place called Waughoe, or Elm Tree, where the line behind South Carolina terminates; from a place called Waughoe or Elm Tree on the southern bank of Reedy River, a north course in a straight line to a mountain called Tryon Mountain, where the great ridge of mountains becomes impervious; from Tryon Mountain in a straight line to Chiswell's mine, on the eastern bank of the Great Conhoway
(Kenhawa) River, about a N. by E. course; and from Chiswell's mine, on the eastern bank of the Great Conhoway, in a straight line, about a north course, to the confluence of the Great Conhoway with the Ohio.
3. Treaty with the Six Nations, concluded at Fort Stanwix, on 5 November, 1768, in which the sachems and chiefs assert the ownership of, and by which they sold to King George III, all the land bounded by the following line: beginning at the mouth of the Cherokee, or Hogohege (Tennessee) River, where it empties into the River Ohio, and running from thence upwards along the south side of the said River Ohio, to Kittanning, which is above Fort Pitt; from thence by a direct line to the nearest fork of the west branch of the Susquehanna &c., and extended eastward from every part of the said line &c.
4. Instructions from Lord Botetourt to Col. Lewis and Dr. Walker, dated Williamsburg, Dec. 20, 1768, directing them to proceed to Mr. Stuart, superintendent of the Southern District, and represent to him that the line from Chiswell's mine to the mouth of the Great Kenhaway contracts the limits of the colony too much, and saying that
"If Virginia had been consulted upon this line, there would have been an opportunity of showing that the Cherokees had no just title to the lands between the supposed line and the mouth of the Cherokee River, which in fact were claimed, and have been sold to his majesty, by the northern nations at the late treaty at Fort Stanwix."
5. Report of Lewis and Walker saying that they had met with a portion of the Cherokee chiefs, who would use their influence to obtain a new boundary.
6. A memorial from the House of Burgesses of Virginia to the governor praying that a new boundary line may be adopted and suggesting one from the western termination of the North Carolina line in a due west direction to the River Ohio. This memorial was sent to England by the governor on 18 December, 1769.
7. An address from the House of Burgesses to the governor and his answer upon the same subject.
8. Resolutions of the House of Burgesses, 16 June, 1770, requesting that a treaty be made with the Cherokees for the lands lying within a line to be run from the place where the North Carolina line terminates, in a due western direction, till it intersects Holstein River, and from thence to the mouth of the Great Kenhawa.
9. Letter from Lord Hillsborough to Lord Botetourt, dated at White Hall, State Paper Office, October 3, 1770, saying,
"I am convinced from the fullest consideration that the extension of the boundary line, as proposed by the address of the House of Burgesses in December last, would never have been consented to by the Cherokees."
10. Treaty with the Cherokees, made at Lochaber, in the Province of South Carolina, on 18 October, 1770, adopting as a boundary a line beginning where the boundary line between the province of North Carolina and the Cherokee hunting grounds terminates and running thence in a west course to a point six miles east of Long Island, in Holstein's River, and thence in a course to the confluence of the Great Conhawa and Ohio Rivers.
11. Letter from Lord Dunmore to the Earl of Hillsborough, dated at Williamsburg, March, 1772, saying that the boundary line between the colony and the hunting grounds of the Cherokee Indians had been run by Mr. Donelson and others, but that it had not been run exactly according to instructions, taking in a larger tract of country than by those instructions they had permission to include; that the commissioners had continued, from the point on Holstein River where it is intersected by the division line of Virginia and North Carolina, down that river a small distance to a place from whence they had an easier access than anywhere else to be found to the head of Louisa (or Kentucky) River.
There were also given in evidence, sundry papers from the State Department, verified, as copies, by the certificate of Fletcher Webster, Esq., Acting Secretary of State, the substance of which was as follows:
1. A protection for the Great Warrior of Chote, dated on 13 May, 1771, at Toguch, and signed by Alexander Cameron, deputy superintendent. It states that he intends to hunt from thence to Long Island and thereabouts, until the arrival of the Virginia commissioners, who are appointed by that government to run the boundary line, and expresses a hope that if he should meet with any hunting parties, they would remove from the lands which were reserved for the Cherokees.
2. A talk from Alexander Cameron, dated at Lochaber, 5 February, 1772, saying to the Indians that he had informed the Governor of Virginia that the course of the boundary line to where they left it on the Cedar River was approved by all the chiefs, and that he had
reminded Colonel Donelson of his promise of sending a few presents to the Long Island, upon Holston, in the spring.
3. A letter from John Stuart to Ouconestotah, great war chief of the Cherokee nation, saying that he sent him therewith a copy of the boundary agreed upon, and that persons were appointed to mark it immediately.
4. A treaty of cession to his majesty by the Creeks and Cherokee Indians of certain lands to the south, dated on 1 June, 1773, at Augusta, and a talk to the Cherokees dated at Augusta on 3 June, 1773, reminding them that in 1771 they had marked a line, dividing their hunting grounds from what they gave up to his majesty in the Province of Virginia, and which fell in upon the head or source of Louisa (now Kentucky) River, and down the stream thereof to its confluence with the Ohio, and relinquished all claims or pretensions to any lands to the northeastward of said line, and informing them that his Majesty had erected a new province whose boundaries were -- beginning on the south side of the River Ohio, opposite the mouth of Sciota, thence, southerly, through the pass in the Anasiota Mountains, to the south side of the said mountains; thence along the south side of the said mountains northeastwardly to the fork of the Great Kenhawa made by the junction of Greenbriar River and the New River; thence along the Greenbriar River, on the easterly side of the same, unto the head or termination of its northeasterly branch thereof; thence easterly to the Alleghany Mountains; thence by various courses to the southern and western boundary line of Pennsylvania, and along the western boundary line until it shall strike the Ohio River, and thence down the said River Ohio to the place of beginning.
5. Talk from Lord Dunmore to the Little Carpenter and chiefs of the Cherokee nations of Indians, dated at Williamsburg on 23 March, 1775, warning them not to grant land to Henderson or any other white people.
6. A letter from William Preston to the chiefs of the Cherokee nation, dated at Fincastle County on 12 April, 1775, saying that he was commanded by Lord Dunmore to send the letter by a special messenger, who was to read it to the council. The letter remonstrates against the sale which they had lately made of that great tract of land on the Ohio without the advice or consent of the King, and says that, by various treaties, the land had been the property of the King for upwards of thirty years.
7. A letter from Patrick Henry Jr. to Oconostotah, dated 3 March, 1777, assuring the Cherokees of the protection of Virginia and expressing an expectation that he and his warriors and headmen will not fail to meet Colonel Christian, Colonel Preston, and Colonel Shelby, at the fort near the Great Island to confirm the peace.
8. Articles of peace made at Fort Henry, near the Great Island, on Holston's River on 20 July, 1777, between the commissioners from the Commonwealth of Virginia, of the one part, and the chiefs of that part of the Cherokee nation called the Overhill Indians, of the other part.
The fifth article recites that as many white people have settled on lands below the boundary between Virginia and the Cherokees, commonly called Donelson's Line, it is necessary to fix and extend a new boundary and purchase the lands within it. The new line begins at the lower corner of Donelson's Line on the north side of the River Holston, and runs down that river according to the meanders thereof and bending thereon, including the Great Island, to the mouth of Claud's Creek, being the second creek below the warrior's ford at the mouth of Carter's Valley; thence running a straight line to a high point on Cumberland Mountain, between three and five miles below or westward of the great gap which leads to the settlement of the Kentucky. This last-mentioned line is to be considered as the boundary between Virginia and the Cherokees.
9. A letter from Patrick Henry, dated at Williamsburg on 15 November, 1777, to Oucconastotah saying that his heart and the hearts of all the Virginians are still good towards the Cherokees.
10. A letter from Patrick Henry to the Cherokees saying that he is informed that the line which was run was not convenient to the Cherokees; that they wanted it to come higher up the River Holston, and that he has given orders to have it altered a few miles, to take in the fording place into their land.
There was also given in evidence the deposition of Peter Force, an inhabitant of the City of Washington, who had been for many years engaged in collecting authentic papers connected with the history of the United States, from the settlement of the several colonies (including Virginia) to the adoption of the federal Constitution, under a contract with the Secretary of State, made by authority of an act of Congress. Mr. Force gave it as his opinion, after an examination of books, maps, treaties, and other authentic papers, that the
country between the Tennessee, Ohio and Mississippi Rivers and the boundary line between what is now the State of Kentucky and Tennessee belonged to the Cherokees previous to the year 1799; that all the maps which he had found designated the Cherokee country as being north of the Chickasaws, extending westward to the Mississippi and northward to the Ohio, and that in no instance had he found the lands above described to be marked upon any map as belonging to any other tribe of Indians than the Cherokees. Mr. Force annexed to his deposition copies of sundry papers relating to a treaty made in 1730, between the Lords commissioners for trade and plantations and the Cherokees -- together with the treaty itself, which was executed in England by some of the chiefs who had gone there.
Exceptions were filed to the deposition of Peter Force, but they were overruled, and at a subsequent stage of the cause these exceptions were withdrawn.
On 13 November, 1841, after hearing an argument for three successive days, the circuit court dismissed the bill with costs, and the complainant appealed to this Court.
Before the cause was argued, the following paper was filed:
On the question whether the lands in controversy were regarded as Chickasaw or Cherokee lands, the counsel for the appellants hope they will be at liberty to refer to an original official letter from Governor Thomas Jefferson to Gen. Clark dated 29 January, 1780, and now on the files of the Chancery Court at Richmond in a suit there depending between the administrator of Gen. George Rogers Clark and the commonwealth for the settlement of their accounts. This letter is wholly upon the subject of the public service, and, amongst other things, upon the subject of erecting a fort near the mouth of the Ohio. It contains the following passages:
"From the best information I have, I take for granted that our line will pass below the mouth of Ohio. Our purchases of the Cherokees hitherto have not extended southward or westward of the Tanissee. Of course the little tract of country between the Mississippi, Ohio, Tanissee, and Carolina line, on which your fort will be, is still to be purchased from them before you can begin your work. To effect this, I have written to Major Martin our Cherokee agent, of which letter I enclose you a copy."
(This extract is from the first page of the letter.)
"I must also refer to you whether it will be best to build the fort
at the mouth of Ohio, before you begin your campaign, or after you shall have ended it. Perhaps, indeed, the delays of obtaining leave from the Cherokees or of making a purchase from them may oblige you to postpone it till the fall."
(This extract is from the sixth page of the letter.)
It is proper to state that this letter mentions the Chickasaws as a hostile tribe. See the letter, bottom of page 4 and top of 5.
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