[Legal claim pertaining to the private purchase of Creek Indian land]

[added text (appears to be different hand and ink): Usefull [Useful] [unclear text: Hints ] ] The Roman Lawyers, I think, hold that the Particular Property of Goods, Lands &c [et cetera], first Commenced from Possession; they further say there remains to this Day some Foot Steps of it in things which remain Common, and belong to the first Occupant, " [Latin: Dominiumque rerum et naturali Possessione capesse [illegible text] ejusque rei Vestigium remanere, de his que Terra, Mari, Colo, Capiuntur, nam hoc protinus corum finit qui primi Possessionum apprehenderint. ] "
After the good of Society made it necessary for Men [document damaged] to come to a Resolution of quiting [quitting] the Primitive Communion, the first Occupier by this Act alone, appropriated to himself whatever belonged to no Body or was in Common, " [Latin: Quod enim Nullius id ratione Naturali Occupante conceditur. ] " But then is it always to be understood in Such Cases and in Such things where there is no particular prior Right subsistin [document damaged] for it is universally allowed that Dominion or Property can not be required by Occupancy or Possession so long as the Rights of the Former [added text: owner ] still Subsists .
Now the [illegible text] of Property is such that we may [document damaged] at our pleasure dispose of the Goods or Lands &c [et cetera] which we hold by this Right, and keep any other Person from the use of them, unless he hath obtained from us by Covenant, a particular Right for this purpose, and that therefore whilst they continue ours, they cannot after the Same Manner and in the Whole be anothers. "Duorum quidem in Solidum Dominium vel Possessionem esse non posse."
In order to apply those general Rules to the present [document damaged] to laws of his Majestys Subjects upon the Continent of America; our Now British Colonies were possessed [document damaged] and Inhabited, by different Nations or Tribes of Indians, who by Conquest or Natural possession, were the Proprietors or Natural born Heirs; and that no Charter from any Crowned Head whatever could give the Granters a Right or Power, over a free and Independent people, or their Properties, but by Treaty or Conquest. By his Majesty Charter, the different Granters were only [illegible text] to enlarge or extend his Majestys Dominions by one or either of those Methods
The Lands within the Limits of his Majesty Charter Granted to the Trustees for Establishing the Colony of Georgia, from the River Savannah, to the River St. Juan's did by [deleted text: Antient [Ancient] Right ] Conquest and Antient [Ancient] Possession belong to the Creek Nations. This is plainly acknowledged by the Trustees in their first Treaty made with the Headmen of the Lower Creeks in the year
1733. This Treaty was Provisionary and the Express Words of the Proviso are, "Always that they (The Trustees) upon setting every New Town shall sett [set] out for the use of ourselves (The Lower Creeks) and the people of our Nation Such Lands as Shall be agreed upon between their beloved men and the Headmen of our Nation and that those Lands Shall remain to us for ever."
The above acknowledgement [acknowledgment] further appears from an Order sent to Captain [unclear text: Omar ] Mcintosh commanding the Garrison at [unclear text: Pallachuckalas ] on the North Side of Savannah River, upon Complaint being made by the Indians of Some proceedings of the White people, contrary to Treaty with them
[document damaged] "To be [unclear text: Read ]
15th Febry [February] 1735/6 Being informed by the Indians that several persons contrary to the Treaty with them made, have carried over Cattle & Negroes and have planted on the Georgia Side of the River, you are hereby Authorized and required to give a Notice to the Same persons to withdraw their Horses, Cattle & Negroes out of Georgia, and if within three Days they do not withdraw their Negroes, you are to Seize and bring the Negroes to Savannah, and deliver them to the Magistrate there, and Proceeding shall be had if they Leave their Cattle beyond the Land [document damaged] " But previous to this the Trustees themselves were highly Sensible of the Right of the Indians, and of the Necessity of a Strict observance of the Treaties entered into with them, as appears from a Letter to the Bailiffs and Recorder of the Town of Savannah by order of the Common Council of the Trustees dated the
17th March 1734/5, Signed Benjamin Martin Secretary. Wherein they say, "That [document damaged: their ] New Stated Opinion, that it is cruel to Imprison on Account of an Indian" is itself very cruel and pernicious, for if Injustice is done to an Indian the person who does it Should be more Severely punished for do [deleted text: g ] [added text: ing it ] to one who is helpless, from his Ignorance of our Language, and because it is a Breach of Treaty, and an Act of Ingratitude to the first Possessors of the Land, who have been exceeding Friendly and kind to the Colony in its first Weakness & Necessities.
In the year
1739 an other [another] Solemn Treaty [deleted text: is ] [added text: was ] entered into with the Creek Nation, wherein the Lands assigned to the Crown are expressly [document damaged] and the Rights of the [unclear text: Sd. [Said] ] Nation to that part unassigned as expressly declared & Acknowledged [document damaged] by the Trustees themselves in their Account of the Progress of the Colony published by their Order; in the year
1741. where giving an Account of the Progress of the year
1739; Speaking of General Oglethorpes Journey to the Creek Nation, they say that "he by his Treaties with the Indians, in this Journey had confirmed them in the British Interest, and made a New Treaty with them, whereby their former Concession of Lands to Great Britain was confirmed & Extended . So consequently [document damaged] to for the extent of the Rights of the Crown and the Creek Indian Nation to which reference may be had."
But for further Satisfaction I Shall beg Leave, to adduce a later Proof of the above fact; In [deleted text: the year ]
[added text: January ] 1751 The people of Georgia sent home a most flaming Representation against me, setting forth the dangerous Consequences of Monopolizing of Lands in the Colony by Indian Purchases &c [et cetera] [added text: &c &c [et cetera et cetera] ] -- In Answer to which the Trustees in a Letter to the President and Council dated at the [illegible text] Office
July 10th. 1757 Say, "The Representative [document damaged] and the Reasons in it against Suffering private persons to purchase those Lands from the Indians appear to the Trustees to have been well considered, and they Direct me (the Secretary) to acquaint you that they are much concerned to find that Mr. Thos. [Thomas] Bosomworth still continues to enter into Treaties with any Indians for the purchase of Lands within the Bounds of his Majesty Charter. For by the Treaty with the Creek Nation made in the year
1733. and confirmed and explained [document damaged] an other in the year
1739, it is declared by the Indians, that they will not Suffer any person whatsoever, to settle on the Said Lands in the Colony but the Trustees, and therefore they could not treat with any other person for the Sale of the reserved Lands, nor can any Title be made to these, but by an Agreement to be made, betwixt the Trustees and the Creek Nation in general."
This is the only Reason assigned by the Trustees in their Answer to the Representation of the Assembly against the Validity of my Title -- [document damaged] which I beg Leave to remark; That if this Exception in the Treaty is to be understood in a Strict Litteral [Literal] Sense, then every Subject of the Crown of Great Britain is thereby excluded from possessing any Lands in the Colony of Georgia excepting the Trustees in person, the Absurdity of which Construction is Self evident But a perusal of the Said Treaty will Soon make this Exception appear in a Different Light. The Indians Declare "That they for Ages had the Protection of the Kings and Queens of England, that they have gone to War by Commission from the Said Kings and Queens of England and that they can Show the Heaps of Bones of their Enemies Slain in Defence [Defense] of the Said Lands; and they do declare that the Spaniards [document damaged] " them nor no other Person (excepting the Trustees for Georgia to settle upon the Said Lands) Now from the Premises it is very evident [added text: that this Exception ] extends only to foreign -- Nations the French or Spaniards and that must terminate within the bounds assigned to the Trustees; for that part unassigned is entirely excluded out of the Said Treaty for the Indians declare, That they Did and Do reserve Such and Such Lands Therefore no words in the said Treaty can be any ways construed to have any Reference to this Exclusive Reservation
As there cannot be any Such thing in Nature as for a [document damaged] Property to the Arbitrary Will of any Man or Number of Men whatever without a Consideration, Therefore it cannot be Supposed that the Creek Indians ever indend to give the Power out of their own Hands to the Trustees of disposing of what is Bona Fide their own Property. This Act would be void as inconsistent with the great Law of Nature.
If the Creek Indians cannot give or dispose of their Reserved Lands to whom they please; this Restriction must be prejudiced to that Natural Right and [document damaged] which by the Laws of Nature & Nations is allowed to be vested in them --
[added text: That any [illegible text] Province by an Act of Assembly may make a Law to [document damaged] any person from purchasing Land [document damaged] which will be of force within its Limits is readily Acknowledged, but no Such Law [deleted text: [illegible text] ] ever [unclear text: Submited [Submitted] ] in Georgia [document damaged] Hon [Honor] the Laws of Gt [Great] Britain in that [document damaged] &c [document damaged] [et cetera] ]